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277 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | 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 noted that that the central issue in the present case was not the existence of the power to detain suspected terrorists for up to seven days but rather the exercise of this power without judicial intervention. As to whether, firstly, the derogation was a genuine response to an emergency situation, since the power of extended detention without such judicial control and the derogation of 23 December 1988 were clearly linked to the persistence of the emergency situation, there was no indication that the derogation was other than a genuine response. As to whether the derogation was premature, the validity of the derogation could not 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 was not only in keeping with Article 15 § 3, which required permanent review of the need for emergency measures, but was also implicit in the very notion of proportionality. As to whether the absence of judicial control of extended detention was justified, the Court restated among other things that it was 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 had 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. In the context of Northern Ireland, where the judiciary was small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary was understandably a matter to which the Government attached great importance. In the light of these considerations it could not be said that the Government had exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control. Lastly, as regards safeguards against abuse, the Court was satisfied that such safeguards did in fact exist and provided an important measure of protection against arbitrary behaviour and incommunicado detention. In addition to the basic safeguards, the operation of the legislation in question had been kept under regular independent review and, until 1989, was subject to regular renewal. In the present case, 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 took the view that the British Government had not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation. |
86 | Parental authority, child custody and access rights | THE LAW ALLEGED VIOLATION OF ARTICLEs 8 and 9 OF THE CONVENTION and article 2 of protocol no. 1 to the convention 83. The applicant initially complained that the withdrawal of her parental responsibility in respect of her son, X, and the authorisation granted to his foster parents to adopt him, had violated her right to respect for family life as guaranteed by Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 84. Furthermore, the applicant complained that the above measures had entailed a violation of her right to freedom of religion as guaranteed by Article 9 of the Convention, 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.” 85. In addition, in the proceedings before the Grand Chamber, the applicant relied on Article 2 of Protocol No. 1 to the Convention, which provides: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” The Chamber judgment 86. The Chamber, referring to fact that the Court was the master of the characterisation to be given in law to the facts of the case, considered that the applicant’s submissions relating to her and X’s cultural and religious background, within the particular context of the case, also fell to be examined under Article 8. It went on to declare the complaint under Article 8 admissible. 87. With regard to the merits, the Chamber stated that the general principles applicable to cases involving child welfare measures, such as those at issue, were well-established in the Court’s case-law and had recently been set out extensively in the case of Strand Lobben and Others, cited above, §§ 202-213. In applying those principles to the case, it noted that in the domestic proceedings the applicant had not applied for the care order to be lifted and accordingly to be reunited with X; she had only requested that her parental responsibility in respect of X not be removed and that consent to his adoption be refused. Furthermore, although the applicant had not appealed against the District Court’s judgment or even applied to the Court when the care order was originally issued, the Chamber went on to find that the decisions on contact rights taken in the course of those proceedings meant that there had only been minimal contact between the applicant and X from the very outset, contrary to the principle under Article 8 that the contact regime ought to guard, strengthen and develop family ties. That being the case, the Chamber had difficulties in considering that the domestic authorities could be said to have taken any real measures to facilitate family reunification before deciding to approve X’s adoption. 88. The Chamber also considered that the High Court had provided limited grounds for the findings in respect of the nature and causes of X’s reactions to contact with the applicant, to which it had attached importance when deciding on the adoption. Adding to the other specific reasons that militated in favour of maintaining the possibility of some contact between X and the applicant, particularly those relating to their cultural and religious background, the above considerations led the Chamber to conclude that in the course of the case culminating in X’s adoption, insufficient weight had been attached to the aim that the applicant and X enjoy family life. Emphasising the gravity of the interference and the seriousness of the interests at stake, the Chamber did not consider that the decision-making process leading to the impugned decision to withdraw the applicant’s parental responsibility in respect of X and to authorise his adoption had been conducted in such a manner as to ensure that all of the applicant’s views and interests were duly taken into account. The Chamber concluded that there had been a violation of Article 8 of the Convention. The parties’ submissionsThe applicant The applicant The applicant 89. The applicant maintained that the question as to whether Article 8 of the Convention had been violated was a bygone conclusion following the Chamber’s judgment. The applicant had not requested referral to the Grand Chamber with reference to that provision, and the respondent Government had not requested referral. They should therefore be estopped from arguing that there had been no violation of Article 8. Moreover, in the applicant’s view there had plainly been a violation of that provision. She argued that the foster placement in the instant case had put even greater strain on the bond between the biological mother and the child than in the case of Strand Lobben and Others, cited at paragraph 62 above, since X, in contrast to the child involved in that case, had been cut off from his cultural, ethnic, linguistic and religious roots. 90. The visits that had been carried out during X’s foster care had taken place under supervision and had not given the applicant and X enough space to develop a family bond. After a while the foster parents had stopped calling the applicant “mum”. 91. In the applicant’s view, Article 8 should be interpreted in the light of Article 9 of the Convention and Article 2 of Protocol No. 1. Questions regarding violations of freedom of religion should, however, be kept separate from Article 8 and the issue arising under Article 9 merited its own discussion. For a parent to raise a child in accordance with his or her religion or belief was a manifestation of that religion or belief, and this practice was at the core of the perception of what religious freedom is; it was also universal to all religions and belief systems. 92. The applicant submitted that, contrary to section 4-15 of the Child Welfare Act, no attempts had been made to find a foster home that had matched her cultural and religious background. There had therefore been a breach of the lawfulness requirement in Article 9 of the Convention; reference was also made to Article 7. The child should have been placed in a Muslim foster family with Somali roots or, if not possible, at least a Muslim family. In her observations before the Grand Chamber, the applicant submitted that it was not correct to assert that the authorities had made efforts to facilitate such a placement. In her subsequent pleadings she argued that she had been unaware of and not involved in any efforts that had been made. She also argued that, by setting the adoption in motion, the child welfare services had made a decision that had also violated the child’s rights, as they had permitted indoctrination of the child away from his religion, in contravention of Article 9 and Article 2 of Protocol No. 1 to the Convention. Furthermore, the foster family had not been sufficiently informed by Norwegian authorities about how to respect and take account of the foster child’s religious identity and their duty not to convert the child to their religion. 93. Furthermore, nothing even approaching such sound and weighty considerations as were required by the Court’s case-law in order to justify the severing of family ties had been proffered by the domestic authorities in the instant case. All the ties to the applicant’s religion had been severed through the adoption, because the foster family had wished to baptise the child and had done so following the adoption. Furthermore, conversion to another religion was considered to be apostasy in Islam and a crime under Sharia law. Moreover, following the adoption, the child’s name had been changed. Naming a child was a parent’s prerogative and a name was often a bearer of familial, cultural and religious tradition. In the present case, there had been an especially strong religious connotation to his name and the name change had been directly related to the adoptive parents’ religion. The name change in itself therefore fell within the scope of Article 9 of the Convention in this case. 94. The applicant argued that, throughout her whole case, she had been vocal about her religious identity and her specific wishes for a religious upbringing for the child. Placing the child with the particular family at issue had not been done in the pursuit of a legitimate aim; the legitimate aim would have been to reunite the child with the applicant. The violation of Article 9 of the Convention was not something that occurred at the specific time of adoption; it had first occurred when the child was placed with his foster family and was continuous throughout the duration of the placement. 95. The applicant maintained that Article 2 of Protocol No. 1 applied to the facts of her case. It was clear from the Court’s case-law that the placement of a child in public care did not cause the parents to lose all their rights under that provision. 96. In the applicant’s view, Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1 interacted and had to be interpreted in the light of Article 14 of the Convention. A “religiously neutral” policy of child placements systematically benefitted religious majorities, as children belonging to such groups would be more likely to be placed with someone of the same religion than those belonging to minorities. The case also involved a child who had been christened into a missionary church outside the religious mainstream whose activities could be described by the majority as indoctrination, and natural parents belonging to the Christian majority could also have objected to fostering and adoption on those grounds. 97. In the applicant’s opinion, the Court should attach great weight to the measures that predated the acts brought before it, as the manner in which they had been made had paved the way for the subsequent adoption. She asserted that, by not considering her rights under Article 9 of the Convention and Article 2 of Protocol No. 1, the Norwegian authorities had not fulfilled their duty as the primary guarantors of Convention rights, as required by Article 1 of the Convention. 98. Before the Grand Chamber, the applicant asked that the Court make a statement regarding indicative measures under Article 46 of the Convention. She submitted in that context that the domestic procedural law provided for reopening of judgments in which the Convention had been misapplied. The Government 99. The Government argued that the Chamber had correctly subsumed the case’s cultural and religious aspects under Article 8 of the Convention. The complaint related to the applicant’s own sentiments in respect of her son’s upbringing, which were suitably encompassed by the interests of parents, integral to the proportionality assessment under the second paragraph of that provision. They also pointed out that Article 8 protects the parent’s “private life”, which included, among other things, individual ethnicity as well as the relationship between parent and child. 100. Based on the criteria set out by the Court in the case of Strand Lobben and Others, cited above, the Government argued that there had been no violation of Article 8 in the instant case. The Chamber had built on its own assessment of evidence and had failed to refer to relevant facts; in so doing, it had departed from the Court’s subsidiary and procedural role. The Chamber had, among other things, made no reference to the efforts made by the domestic authorities to enable the applicant to maintain her relationship with her child, nor to the efforts made by those authorities prior to the emergency decision. 101. In that context, the Government pointed out that in the period which had elapsed from the point at which X was placed in an emergency care home (that is, at the turn of September and October 2010) until the municipal child welfare office applied for foster parent adoption (on 11 September 2013), and then again until his adoption was confirmed in 2015, several assistance measures were adopted. These included the initial and comprehensive follow-up from two asylum centres, before arrangements were made for the applicant to live in a house with professionals who had been contracted by the municipality to help, assist and guide the applicant, with whom her son was then residing. From January 2011 the applicant had stayed for two years in a shared house for single minor asylum seekers, where she had been supported day and night by therapists. In January 2013 she had moved into a flat in shared accommodation, where staff had monitored her regularly. She had received continuous training in everyday activities and been given considerable medical and educational assistance. While all these measures had been conducive to aiding the applicant in maturing, becoming independent and being able to act as a responsible adult who could resume looking after her child, the applicant had shown no improvement in her caring skills. At the same time X had had extraordinary needs. 102. The domestic authorities’ decisions showed that there had been exceptional circumstances behind the decision to deprive her of parental responsibility and to consent to adoption and that these measures had been justified, since they were motivated by an overriding requirement pertaining to the child’s best interests. 103. The Government submitted that, in the circumstances of the instant case, no separate issues arose in respect of either Article 9 of the Convention or Article 2 of Protocol No. 1. As to Article 9 in general, they were however prepared to assume that making choices motivated by religion on behalf of one’s child might amount to a religious “manifestation” under that provision. They further stated that regardless of whether the case was assessed through the lens of negative or positive obligations under Article 9, a balancing of the different interests at stake had to be carried out. 104. The child welfare services had tried to accommodate the applicant’s wish that her son be placed in a Somali and Muslim foster home. They had contacted a cousin of the applicant, a Somali couple, as well as an Afghan Muslim family, but without success. Despite efforts over many years to recruit Muslim foster parents in Norway, it remained difficult to find such homes. The child welfare services had thus had due regard to the applicant’s wishes and had made the efforts that could be reasonably expected of them to find a Muslim foster home, but when the search for such a home proved unsuccessful, X’s interests in obtaining a rapid placement overrode the applicant’s interests. 105. During the foster home placement, the child welfare services had assessed cultural and religious aspects of the foster home stay as part of their supervision of the foster home. The child welfare services had been aware of, and sensitive to, the importance of preserving the child’s cultural and religious background in order to safeguard the goal of a future reunification. X’s foster parents had also participated in a training course which emphasised the importance of preserving this background. 106. The Government accepted that the subsequent adoption had interfered with the applicant’s right to manifest her religion, notwithstanding the fact that some of her freedom of religion in that respect had already been removed by virtue of the care order. The decision to consent to adoption had however been based on what was in X’s best interests. The religious and cultural aspects of the case had been extensively discussed and a balanced and well-founded assessment, in which the applicant’s interests had been weighed against X’s interest in remaining with the family with which he had lived for more than three years, had been made by the High Court. The High Court had heard and relied on the witness statements of two experts in Islam regarding the placement of a Muslim boy with Christian foster parents and had had considerable and detailed regard to the applicant’s and the boy’s interests in having their faith respected. The margin of appreciation had not been exceeded. 107. While the Government were principally of the view that no separate questions arose either under Article 9 of the Convention or under Article 2 of Protocol No. 1, they argued, in the alternative, that Article 9 was more suitable than Article 2 of Protocol No. 1, as the functions assumed by the respondent State in this case fell outside the scope of “education” and “teaching” in the sense of the latter provision. 108. The Government stated that most decisions under Article 2 of Protocol No. 1 had concerned activities in schools and other educational institutions. By removing X from his biological parent and placing him with foster parents, the State had conceivably and in a certain manner interfered with his “teaching”, but this was “teaching” taking place in a family environment and significantly different from the “teaching” taking place in State schools in so far as this concerned its content, context and purpose. 109. The principles developed under Article 2 of the Protocol were not well suited to addressing the issues at stake. In the Government’s view, those principles reflected the balancing of interests required in an educational institution in the light of the school’s function as an arena of integration, pluralism and knowledge transmission. The balancing of interests in a case such as the present one was different; the interests of the individual child played a predominant role and the balancing of interests between different religious groups was of less importance. The Government added that while education was generally examined from the angle of that provision, this had not excluded the Court from reviewing cases relating to education under Article 9. Third parties (a) The Government of Denmark 110. The Danish Government focused its intervention on the general principles guiding deprivation of parental responsibility and adoption without parental consent. In essence, they argued that the Court should – in line with the principle of subsidiarity – not substitute its own substantive balancing of interests for that of the national authorities but rather review the national authorities’ decision-making process in such cases. Moreover, the Danish Government argued that the Court should confirm the best interests of the child as the primary consideration in cases relating to child welfare, such as adoption cases. 111. In the Danish Government’s view, the Chamber had conducted a substantive scrutiny of the national decisions and, in its assessment, indicated a move towards attaching increased weight to the interests of the parents and, in consequence, had decreased the weight that was to be attached to the best interests of the child. 112. With regard to the issue of the choice of foster home, the Danish Government found that the best interests of the child should be the guiding factor. When choosing a foster family, the authorities should have regard for the child’s needs and life situation, including the child’s cultural and religious background and needs. Sometimes, however, it would not be possible to find a family with a similar cultural and religious background to that of the child and his or her parents, notably owing to a lack of foster families with such backgrounds. When necessary and in the best interests of the child to be removed from his or her parents, this should not prevent the child being placed with a foster family even if they were of a different cultural and religious background. (b) The Government of the Czech Republic 113. The Czech Government stressed that, when assessing the compliance of State authorities with their obligations under Article 8 of the Convention, it was necessary to take due account of the situation of all members of the family, as that provision guaranteed protection to the whole family. Moreover, they stressed that there was a broad consensus that in all decisions concerning children, their best interests must be paramount. The “best interests” principle was however not designed to be a kind of a “trump card” and the paramountcy of the child’s interests did not mean that the Contracting States should give up on the biological parents’ right to family life. 114. On the topic of contact between the biological parents and their child in public care and other measures to reunite the family, the Czech Government pointed out that, under Article 9 § 3 of the Convention on the Rights of the Child, the child had the right to maintain personal relations and direct contact with both parents on a regular basis, except when this was contrary to his or her best interests. Moreover, they emphasised the positive duties inherent in Article 8 of the Convention and that it was highly important to maintain contact between biological parents and the child during the latter’s placement in care, as the regime of contact ought to guard, strengthen and develop family ties. 115. With respect to adoption, the Czech Government stated that the crucial question was whether, in cases where the biological parents wished to participate in their child’s upbringing and/or to exercise their contact rights (if allowed), adoption and other restrictions or a ban on contact rights were in compliance with Article 8 of the Convention. It further stated in this regard, among other points, that the extent of the child’s relationship with the biological parent could be a crucial factor. This led to the question of allowing for sufficient contact rights and of preserving the bond with the biological family while the child was in foster care. 116. The Czech Government emphasised the United Nations General Assembly Resolution on “Guidelines for the Alternative Care of Children” and noted that, according to the Committee on the Rights of the Child, the State party should take measures, including adequate training of personnel, necessary to ensure that children belonging to an indigenous or national minority group who are placed in alternative care learn about, and maintain their connection to, their native culture. 117. Furthermore, they stated that, when deciding about out-of-home placement, or even adoption, the authorities must have due regard also to the wishes of the biological parents to have their children placed with foster or adoptive parents that will comply with their religious beliefs. When choosing a suitable adopter, the authorities should therefore take due account of the understanding by prospective adopters of developmental and behavioural issues, issues surrounding the cultural, spiritual or religious needs of the child, the importance of providing information to the child about his background, and issues of racism and its effects. 118. The Czech Government also pointed out that information about the child’s origin was critical to the ability of a child from a minority group or of indigenous origin to exercise the right to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language under Article 30 of the Convention on the Rights of the Child. In this context, the Committee on the Rights of the Child had recommended that States parties ensure the right of adopted children, as far as possible, to maintain one of their original first names. (c) The Government of Turkey 119. The Government of Turkey maintained that the Court recognised that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny was called for both of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure effective protection of the right of parents and children to respect for their family life. 120. Furthermore, the Government of Turkey submitted that, according to the Court’s case-law and international practices, removal and placement of children with long-term foster families and prospective adoptive parents should be used only in exceptional cases and as a last resort, after all other options are exhausted, as these measures are often irreversible, especially in respect of children aged 0-6. In the instant case, it was not clear whether there had been exceptional circumstances such as a history of violence, ill ‑ treatment or drug or alcohol addiction that would prevent the mother from providing parental care to her own child permanently and would have justified the authorities’ severe measures, which led to the severing of mother-child ties. It was not sufficiently proved that the child welfare services had exhausted other options prior to removing the applicant’s child and placing him with a prospective adoptive family. The Government of Turkey also drew the Court’s attention to the vulnerable condition of the applicant and her son and argued that by the very act of imposing a very restrictive contact regime, the authorities had failed in their positive duty to take measures to facilitate the applicant’s and her child’s continued enjoyment of a family life. 121. The Government of Turkey maintained that it was unclear whether the national authorities had conducted a thorough assessment when choosing the foster parents and exhausted all other available options before placing the child in foster care with foster parents of a different religion. They also stated that it was unknown which steps, if any, had been taken by the child welfare services with regard to the applicant’s concerns that the foster parents actively indoctrinated her child into their faith without any consideration for the fact that he was of the Muslim faith and that the applicant, as the child’s mother, wished to bring him up as a Muslim, following the cultural and religious identity of his roots. 122. Moreover, the Government of Turkey noted that, following his adoption, the child had been baptised and given a Christian name, and argued that the authorities’ decisions had resulted in the child’s religious conversion into the Christian faith, in violation of the applicant’s and her son’s right to freedom of religion under Article 9 of the Convention. They stated in this context that the fact that the child had been baptised and given a Christian name implicitly implied the argument that the child would not have been able to integrate into his adoptive family without surrendering the cultural and religious identity into which he had been born. Lastly, they stated that it would be beneficial in the instant case if the Court could examine, in conjunction with the other provisions, whether there had been a violation of the prohibition of discrimination set out in Article 14. 123. The Government of Turkey were of the opinion that the child’s religious, cultural, ethnic and linguistic background had not been taken into consideration in the decisions of the child welfare services and the Norwegian courts’ judgments concerning the placement of the applicant’s child. This constituted an interference with the applicant’s rights, not only under Article 8, but also under Article 9 of the Convention and Article 2 of Protocol No. 1, as well as under Article 14 of the Convention in conjunction with these provisions. The authorities’ conduct had violated the applicant’s right to raise and educate her child in conformity with her own religious beliefs and convictions. (d) The AIRE Centre 124. The AIRE Centre focused on the United Nations Convention on the Rights of the Child. In that context, it drew the Court’s attention, among other points, to the fact that the rights set out in that Convention applied to all children under the age of 18, including teenage mothers. In the context of teenage mother asylum seekers, that Convention required a guardian to be appointed for the young mothers as well as for their babies, in order to ensure that all their needs, including their needs as mothers, were properly met. The AIRE Centre also emphasised that the principle of the paramountcy of the child’s best interests applied equally to the best interests of babies and to the best interests of their mothers if their mothers were also children. 125. The AIRE Centre also emphasised issues relating to the child’s participation in the decision-making process if it involves children who are able to form own opinions and stated, inter alia, that for domestic proceedings to comply with the procedural requirements of Article 8 of the Convention, the child had to have participated, either directly or indirectly, in the child protection or adoption proceedings. The same applied to proceedings before this Court, meaning that in order to meet the requirements of the United Nations Convention on the Rights of the Child, the child’s views had to be heard by the European Court of Human Rights. 126. In their submissions, the AIRE Centre also discussed different forms of alternative care and adoption with regard to the aspect of religious matters. Furthermore, it stated that it was essential to be aware that adoption was not permitted in Islam and that the Koran forbade it. Children who had lost the care of their birth parents were provided in Islam with new homes through the institution of Kafalah. Kafalah placed very exacting religious obligations on the kefils (the new parents) and was often carried out through judicial proceedings. 127. With regard to issues relating to the child and religion, the AIRE Centre’s submissions primarily dealt with the United Nation Convention on the Rights of the Child. It stated, among other things, that in most branches of the Christian religion a child did not “acquire” Christianity at birth, but only through baptism. In Islam and Judaism, a child born to a Muslim or a (qualifying) Jewish parent acquired that religion at birth, similarly to the situation in many States where citizenship was acquired at birth. In the Islamic world, apostasy was in many places regarded as a crime, but in all Islamic countries it was socially frowned on. Very serious and explicit consideration had therefore to be given to whether and why it was in the best interests of any Muslim child of Muslim heritage to be forcibly converted to Christianity. This was a quite distinct issue from whether it was appropriate to place a Muslim child within a Christian foster family, which could be an acceptable solution where forced conversion was not an issue and where there were no other suitable family members available to take on this role. (e) X’s adoptive parents 128. X’s adoptive parents focused on the fact that the Court had established in its case-law that relationships amounting to “private or family life” within the meaning of Article 8 of the Convention were not exclusive to biological parental relationships. With regard to family life with foster parents, the Court’s judgment in the case of Moretti and Benedetti v. Italy (no. 16318/07, §§ 44-52, 27 April 2010) in particular laid down the relevant guidelines. The adoptive parents also emphasised that on the basis of the Court’s case-law due regard should be had to other close personal ties that had formed while the child had been in foster care, for instance with siblings. 129. Furthermore, the adoptive parents emphasised the paramountcy of the child’s best interests in cases such as the present one, and submitted that in the continuation of these two aspects of the Court’s case-law – the strength of the family ties between child and foster parents, and the paramountcy of the principle of the child’s best interests – the Grand Chamber should seek to combine them in the application of Article 8 in the present case. In this respect Moretti and Benedetti, cited above, was particularly relevant to the Court, as an example of the complex reality of situations where several interests – interests originating in family ties that were protected under the Convention – came into conflict with each other and pulled in different directions. The Court’s assessmentScope of the case before the Grand Chamber Scope of the case before the Grand Chamber Scope of the case before the Grand Chamber 130. The Court reiterates that the content and scope of the “case” referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility. This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber (see, for example, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 100, 4 December 2018). In the present case, the Grand Chamber notes that the Chamber declared admissible the complaint lodged by the applicant (see paragraph 3 above), which concerned the deprivation of parental responsibility and the authorisation for the adoption of her son, X, first decided by the County Social Welfare Board on 21 March 2014 and then upheld on appeal (see, inter alia, paragraphs 14-30, 34 and 36 of the Chamber’s judgment). 131. The Grand Chamber observes that X was taken into emergency foster care in 2010 (see paragraph 17 above) and into ordinary foster care following the County Social Welfare Board’s decision of 10 December 2010 (see paragraph 20 above). In the same decision the first applicant was granted contact rights amounting to four short contact sessions, under supervision, per year (see paragraph 22 above). She appealed against that decision, which was ultimately upheld by the District Court in its judgment of 6 September 2011, increasing her contact rights to one hour, six times per year (see paragraph 29 above). As the applicant did not avail herself of the possibility of lodging an appeal, the District Court’s judgment became final on the expiry of the time‑limit for doing so. 132. The above proceedings from 2010 to 2011 did not form part of the applicant’s application in so far as it was declared admissible by the Chamber and the Court does not have jurisdiction to review their compatibility with Article 8 of the Convention. The same applies to the decisions imposing limitations on the applicant’s right to contact with X, predating the adoption proceedings, which started in 2013 (see paragraph 32 above). 133. Nonetheless, in its review of the proceedings relating to the County Social Welfare Board’s decision of 21 March 2014 and the decisions taken on appeal against that decision, notably the District Court’s judgment of 21 November 2014, the High Court’s judgment of 27 May 2015 and the Supreme Court’s Appeals Leave Committee’s decision of 23 September 2015, the Court will have to put those proceedings and decisions in context, which inevitably means that it must to some degree have regard to the preceding proceedings and decisions (see, similarly, Strand Lobben and Others, cited above, § 148). Indeed, as recognised by the Norwegian Supreme Court (see paragraphs 62-66 above), it is relevant in a case such as the present one whether the competent domestic authorities have considered from the very outset all the relevant requirements of Article 8 of the Convention, as reflected in domestic law and other international instruments such as the Convention on the Rights of the Child (see M.L. v. Norway, no. 64639/16, § 98, 22 December 2020). Legal characterisation of the applicant’s complaint 134. A principal reason for the applicant’s request that the case be referred to the Grand Chamber was the Chamber’s decision that all of her arguments fell to be examined under Article 8 of the Convention, rather than, in part under Article 9, as she had submitted (see paragraph 34 of the Chamber’s judgment). 135. The Court observes in that connection that the applicant’s complaints lodged with the Court under Articles 8 and 9 of the Convention concern the same measures, notably the withdrawal of her parental responsibility in respect of X and the authorisation for X’s adoption by his foster parents. This is also valid with regard to her additional arguments, made for the first time before the Grand Chamber, in relation to Article 2 of Protocol No. 1 to the Convention. It also observes that X himself is not an applicant before the Court. 136. In this connection, the Court reiterates that a complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018). 137. While the type of measures under consideration in this case is one which, according to the Court’s case-law, is invariably considered under Article 8 of the Convention, the question arises as to whether and to what extent the applicant’s complaint attracts the application of Article 9 of the Convention and/or Article 2 of Protocol No. 1. 138. Turning to the latter provision first, the Court reiterates that the Convention institutions have on certain occasions been called upon to examine complaints formulated under this provision, in addition to the complaint under Article 8 of the Convention, in regard to the choice of foster home. It is noteworthy that in Olsson v. Sweden (no. 1), 24 March 1988, § 95, Series A no. 130, the former European Commission of Human Rights stated in paragraph 183 of its report adopted on 2 December 1986: “A decision to take a child into care is of a different character from adoption or the removal of custody. A care order does not mean that the right to custody is removed from the parents. But it implies that the public authorities take over the responsibility for the actual care of the child for a period which is not normally fixed in advance. A care order is however of a temporary nature and the aim is that eventually the children should return to their parents. In the Commission’s opinion the right of the parents under Article 2 of Protocol No. 1 is not removed as a result of a care order. However, since such an order temporarily transfers certain parental rights to the public authorities it is inevitable that the contents of the parents’ rights in Article 2 of Protocol No. 1 must be reduced accordingly. On the other hand, the responsible authorities must, in the exercise of their rights under a care order, have due regard to the parents’ right under Article 2 of Protocol No. 1.” 139. The Court, finding the complaint unsubstantiated, agreed with the Commission in that no violation of Article 2 of Protocol No. 1 had been established (see Olsson v. Sweden (no. 1), cited above). The Commission similarly reached a negative conclusion in Tennenbaum v. Sweden (dec.) no. 16031/90, 3 May 1993), as it had many years earlier in regard to an adoption measure in X v. the United Kingdom (no. 7626/76, 11 July 1977). However, apparently because of the secondary importance of the matter and slender basis for the complaints, the Convention institutions have not elucidated the reach of this provision beyond affirming that the authorities must have due regard to the parents’ right under Article 2 of Protocol No. 1. It appears that most cases examined under this provision and the principles developed in the Court’s case-law concern the obligations of the State in relation to institutionalised education and teaching, as pointed out by the respondent State. The Court further observes that, whilst Article 2 of the Protocol is a lex specialis in relation to Article 9 of the Convention (see, for example, Folgerø and Others v. Norway [GC], no. 15472/02, § 54, ECHR 2007 ‑ III; and Lautsi and Others v. Italy [GC], no. 30814/06, § 59, ECHR 2011 (extracts)), the applicant relied only on the latter provision in her initial application to the Court as declared admissible by the Chamber. In these circumstances, the Grand Chamber will not review the matter with reference to Article 2 of Protocol No. 1. 140. Turning then to Article 9, which the applicant did invoke in her original application, the Court recognises that her views attained the “level of cogency, seriousness, cohesion and importance” so as to fall within the scope of the guarantees embodied in this provision (see, among other authorities, İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 68, 26 April 2016). The Court also considers that for a parent to bring his or her child up in line with one’s own religious or philosophical convictions may be regarded as a way to “manifest his religion or belief, in ... teaching, practice and observance” (emphasis added here). It is clear that when the child lives with his or her biological parent, the latter may exercise Article 9 rights in everyday life through the manner of enjoyment of his or her Article 8 rights. To some degree he or she may also be able to continue doing so where the child has been compulsorily taken into public care, for example through the manner of assuming parental responsibilities or contact rights aimed at facilitating reunion. The compulsory taking into care of a child inevitably entails limitations on the freedom of the biological parent to manifest his or her religious or other philosophical convictions in his or her own upbringing of the child. However, for the reasons stated below the Court does not find it necessary in the instant case to determine the scope of Article 9 and its applicability to the matters complained of. 141. In the Court’s view, the applicant’s complaint relating to the adverse effect of the choice of foster home in regard to her wish that X be brought up in line with her Muslim faith may be examined as an integral part of her complaint concerning her right to respect for her family life as guaranteed by Article 8 of the Convention, interpreted and applied in the light of Article 9, rather than as a separate issue of alleged failures to comply with the rights protected by the latter provision. 142. Against this background, the Court considers it appropriate to centre its examination of the present case on the compatibility of the impugned measures with the applicant’s right to respect for family life under Article 8, which has however to be interpreted and applied in the light of Article 9 of the Convention. This is an approach that it has followed in a number of cases in which it has found the complaint to be most appropriately characterised with reference to one Article, while acknowledging that the subject matter also touches upon interests protected by other Articles of the Convention and Protocols (see, for example, Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23; and Folgerø and Others, cited above, § 100, where the Court held that the two sentences of Article 2 of Protocol No. 1 must be read not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention; see also Lautsi and Others, cited above) and the approach adopted in a number of cases to interpret Article 11 in the light of Articles 9 and/or 10 (see, for example, Young, James and Webster v. the United Kingdom, 13 August 1981, § 57, Series A no. 44; Socialist Party and Others v. Turkey, 25 May 1998, § 41, Reports of Judgments and Decisions 1998-III; Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 102, 15 November 2018) or the other way round (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, §§ 53 et seq ., ECHR 2011); or Article 9 in the light of Article 11 (see İzzettin Doğan and Others, cited above, § 93). Compliance with Article 8 143. It is not disputed between the parties, and the Court finds it unequivocally established, that the measures decided in the proceedings complained of, namely the withdrawal of the applicant’s parental responsibility in respect of X and the authorisation for X’s adoption, entailed an interference with the applicant’s right to respect for her family life, as guaranteed by paragraph 1 of Article 8 of the Convention. Moreover, the Court sees no reason to question that the measures were in accordance with the law, namely the Child Welfare Act (see paragraph 61 above), and pursued legitimate aims under paragraph 2 of Article 8, namely the protection of X’s “health and morals” and his “rights”. It remains to be considered whether the disputed measures were “necessary in a democratic society” for the pursuit of these legitimate aims, including whether the domestic authorities had due regard to the applicant’s interests protected by the Article 9 freedom. 144. This approach is not only consistent with promoting internal consistence and harmony (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X) with that referred to in paragraph 142 above concerning Article 8 in relation to Article 2 of Protocol No. 1. It is also consonant with the standard expressed in various forms in the domestic laws of the great majority of Convention States and reflected in the UN Convention on the Rights of the Child, notably its Article 20(3), whereby due regard shall be paid, inter alia, to the child’s religious, ethnic and cultural background (see paragraphs 73, 81 and 82 above). (a) General principles 145. The general principles relevant to child welfare measures were set out in the Grand Chamber’s judgment in Strand Lobben and Others, cited above, §§ 202-213 (see also, inter alia, K.O. and V.M. v. Norway, no. 64808/16, §§ 59-60, 19 November 2019; A.S. v. Norway, no. 60371/15, §§ 59-61, 17 December 2019; Cînța v. Romania, no. 3891/19, § 26, 18 February 2020; Y.I. v. Russia, no. 68868/14, §§ 75-78, 25 February 2020; Hernehult v. Norway, no. 14652/16, §§ 61-63, 10 March 2020; Pedersen and Others v. Norway, no. 39710/15, §§ 60-62, 10 March 2020; and M.L. v. Norway, cited above, §§ 77-81). While bearing in mind the scope of the case as delimited in paragraphs 130-133 above, and also that the crux of the matter concerns the deprivation of parental responsibility and authorisation to adoption described in paragraphs 32-58 above, in assessing whether these measures were “necessary in a democratic society” the Court will have regard to the following principles: “203. In determining whether the latter condition was fulfilled, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify that measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among many other authorities, Paradiso and Campanelli, cited above, § 179). The notion of necessity further implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued, regard being had to the fair balance which has to be struck between the relevant competing interests (ibid., § 181). 204. In so far as the family life of a child is concerned, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). Indeed, the Court has emphasised that in cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations (see Jovanovic, cited above, § 77, and Gnahoré v. France, no. 40031/98, § 59, ECHR 2000‑IX). 205. At the same time, it should be noted that regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible (see K. and T. v. Finland, cited above, § 178). 206. In instances where the respective interests of a child and those of the parents come into conflict, Article 8 requires that the domestic authorities should strike a fair balance between those interests and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents (see, for instance, Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003‑VIII (extracts), and the references therein). 207. Generally, the best interests of the child dictate, on the one hand, that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit, since severing those ties means cutting a child off from its roots. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, among many other authorities, Neulinger and Shuruk, cited above, § 136; Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII; and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). An important international consensus exists to the effect that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child (see Article 9 § 1 of the United Nations Convention on the Rights of the Child, recited in paragraph 134 above). In addition, it is incumbent on the Contracting States to put in place practical and effective procedural safeguards for the protection of the best interests of the child and to ensure their implementation (see the United Nations Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration, paragraphs 85 and 87, quoted at paragraph 136 above). 208. Another guiding principle is that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see, for instance, Olsson v. Sweden (no. 1), 24 March 1988, § 81, Series A no. 130). The above-mentioned positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child (see, for example, K. and T. v. Finland, cited above, § 178). In this type of case the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live (see, inter alia, S.H. v. Italy, no. 52557/14, § 42, 13 October 2015). Thus, where the authorities are responsible for a situation of family breakdown because they have failed in their above-mentioned obligation, they may not base a decision to authorise adoption on the grounds of the absence of bonds between the parents and the child (see Pontes v. Portugal, no. 19554/09, §§ 92 and 99, 10 April 2012). Furthermore, the ties between members of a family and the prospects of their successful reunification will perforce be weakened if impediments are placed in the way of their having easy and regular access to each other (see Scozzari and Giunta, cited above, § 174; and Olsson (no. 1), cited above, § 81). However, when a considerable period of time has passed since the child was originally taken into public care, the interest of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited (see K. and T. v. Finland, cited above, § 155). 209. As regards replacing a foster home arrangement with a more far-reaching measure such as deprivation of parental responsibilities and authorisation of adoption, with the consequence that the applicants’ legal ties with the child are definitively severed, it is to be reiterated that “such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child’s best interests” (see, for example, Johansen, cited above, § 78, and Aune, cited above, § 66). It is in the very nature of adoption that no real prospects for rehabilitation or family reunification exist and that it is instead in the child’s best interests that he or she be placed permanently in a new family (see R. and H. v. the United Kingdom, no. 35348/06, § 88, 31 May 2011). 210. In determining whether the reasons for the impugned measures were relevant and sufficient for the purpose of paragraph 2 of Article 8 of the Convention, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interests of the child is in every case of crucial importance. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the care of children and the rights of parents whose children have been taken into public care, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, K. and T. v. Finland, cited above, § 154; and Johansen, cited above, § 64). 211. The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit. The Court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care (see, for example, K. and T. v. Finland, cited above, § 155; and Johansen, cited above, § 64). However, this margin is not unfettered. For example, the Court has in certain instances attached weight to whether the authorities, before taking a child into public care, had first attempted to take less drastic measures, such as supportive or preventive ones, and whether these had proved unsuccessful (see, for example, Olsson (no. 1), cited above, §§ 72-74; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013, § 86; and Kutzner v. Germany, no. 46544/99, § 75, ECHR 2002‑I). A stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child are effectively curtailed (see K. and T. v. Finland, cited above, ibid., and Johansen, cited above, ibid.). 212. In cases relating to public-care measures, the Court will further have regard to the authorities’ decision-making process, to determine whether it has been conducted such as to secure that the views and interests of the natural parents are made known to and duly taken into account by the authorities and that they are able to exercise in due time any remedies available to them (see, for instance, W. v. the United Kingdom, 8 July 1987, § 63, Series A no. 121, and Elsholz, cited above, § 52). What has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests and have been able fully to present their case (see, for example, W. v. the United Kingdom, cited above, § 64; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001‑V (extracts); Neulinger and Shuruk, cited above, § 139; and Y.C. v. the United Kingdom, no. 4547/10, § 138, 13 March 2012). ... 213. Whether the decision-making process sufficiently protected a parent’s interests depends on the particular circumstances of each case (see, for example, Sommerfeld, cited above, § 68). ...” (b) Application of those principles to the present case 146. Turning to the concrete examination of the necessity of the impugned measures, the Court observes that the High Court decided that X’s foster care should be replaced with adoption after having held a hearing over two days, which the applicant attended together with her counsel. Eight witnesses gave evidence, of whom four, including psychologists S.H.G. and K.P., gave expert testimony. The High Court’s bench comprised three professional judges, one psychologist and one lay person (see paragraph 43 above). Similarly, extensive proceedings were conducted by the County Social Welfare Board and the District Court (see paragraphs 34 and 40 above). 147. The Court further notes that, in its decision to replace X’s foster care with adoption, contrary to his biological mother’s wishes, the High Court essentially relied on the following reasons: X had lived in his foster home for four and a half years; he had reacted negatively to contact with the applicant; he had become attached to his foster parents; and he was a vulnerable child in need of stability (see, in particular, paragraphs 44-50 above). Furthermore, adoption – in contrast to continued foster care – would rule out the possibility for the applicant to request X’s return to her in the future and also remove the potential for conflicts between her and the foster parents relating to differences in their cultural and religious views (see, in particular, paragraph 56 above). 148. The Court observes moreover that the High Court accepted the applicant’s view at the relevant time that continued foster care would be in X’s best interests. Thus, it appears to the Court that at the time of the impugned proceedings the applicant’s interest in avoiding adoption primarily stemmed from the final and definitive nature of the measure. Since the foster parents did not wish a so-called “open adoption”, an arrangement which included post-adoption contact visits (see paragraph 51 above), adoption would have as a consequence the loss, de facto and de jure, for the applicant of any right to future contact with her child. Moreover, the applicant’s interests in X’s foster care being continued, rather than being transformed into adoption, was due to the expressed likelihood that the latter measure would lead to her son’s religious conversion, contrary to her own wishes. 149. The Court reiterates that an adoption will as a rule entail the severance of family ties to a degree that, according to its case-law, is permissible only in very exceptional circumstances and could only be justified if motivated by an overriding requirement pertaining to the child’s best interests (see Strand Lobben and Others, §§ 206 and 207, quoted at paragraph 145 above). That is so since it is in the very nature of adoption that no real prospects of rehabilitation or family reunification exist and that it is instead in the child’s best interests that he or she be placed permanently in a new family (ibid., § 209). Given the nature of the issues and the seriousness of the interests at stake, a stricter scrutiny is necessarily called for in respect of such decisions (ibid., §§ 209 and 211). 150. Against this background, it should be emphasised that, regardless of the applicant’s acceptance during the adoption proceedings that X’s foster care could continue, and irrespective of whether the domestic authorities were justified in considering long-term foster care for X were he not to be adopted, she and her son retained a right to respect for family life under Article 8 of the Convention. The fact that the applicant did not apply for family reunification did not dispense the authorities from their general obligation to consider the best interests of X in maintaining family ties with the applicant, to preserve their personal relations and, by implication, to provide for a possibility for them to have contact with one another in so far as reasonably feasible and compatible with X’s best interests (see Strand Lobben and Others, § 207, quoted at paragraph 145 above). The foregoing is a central consideration in the Court’s examination of whether the domestic authorities provided relevant and sufficient reasons to show that the circumstances of the case were so exceptional as to justify a complete and definite severance of the ties between X and the applicant and were motivated by an overriding requirement pertaining to the child’s best interests and also whether, in so deciding, they struck a fair balance between the competing interests at stake. 151. Moreover, the Court is fully conscious of the primordial interest of the child in the decision-making process. However, the process leading to the withdrawal of parental responsibility and consent to adoption shows that the domestic authorities did not attempt to perform a genuine balancing exercise between the interests of the child and those of his biological family, but focused on the child’s interests instead of trying to combine both sets of interests, and moreover did not seriously contemplate any possibility of the child’s retaining contact with his biological family (see, similarly, Strand Lobben and Others, cited above, § 220). In this context, the Court is not persuaded that the competent domestic authorities duly considered the potential significance of the fact that the applicant had not applied to have the care order lifted, but merely opposed adoption on the grounds that she wished to maintain a right of contact with her child (see paragraph 43 above). In this regard, given that the High Court’s decision was largely premised on an assessment of X’s attachment to his foster home, the factual basis on which it relied in making that assessment appears to disclose shortcomings in the decision-making process. 152. In this respect the Court observes that the issue of contact between the applicant and X, and especially X’s reactions to the contact sessions that had been conducted since his placement in care, played a central role in the question before the High Court. In that connection, the Court takes particular note that the decision under consideration was taken in a context where there had in fact been very little contact between the applicant and her son from the outset following his placement. On 10 December 2010, when the care order was issued, the County Social Welfare Board decided to grant the applicant contact rights for two hours, four times per year, and the District Court in its judgment of 6 September 2011 put in place a regime with contact rights for one hour, six times per year (see paragraphs 22 and 29 above). Between 2013 and the High Court’s decision, X had apparently met the applicant only twice (see paragraph 49 above). The Court considers that that sparse contact between the applicant and X after the care order was issued had provided limited evidence from which to draw clear conclusions about whether it would be in X’s best interests, as these appeared in 2015 when the impugned decision was taken, that the applicant be given no right to future contact with him (see, mutatis mutandis, Strand Lobben and Others, cited above, § 221). 153. Moreover, the Court notes that the reasons set out in the High Court’s decision focused essentially on the potential effects of removing X from his foster parents and returning him to the applicant, rather than on the grounds for terminating all contact between X and the applicant. In this respect, the High Court appears to have given more importance to the foster parents’ opposition to “open adoption” than to the applicant’s interest in the possibility of a continued family life with her child through contact with him. 154. Furthermore, the Court has reservations regarding the emphasis placed by the High Court on the need to pre-empt the applicant from resorting at some future point to legal remedies to contest the care order or the arrangements for visiting rights. Although there might indeed be instances when, owing to the particular circumstances of a case, repeated legal proceedings may harm the child concerned and must therefore be taken into account, a biological parent’s exercise of judicial remedies cannot automatically count as a factor in favour of adoption (see Strand Lobben and Others, cited above, §§ 212 and 223). The Court notes in this regard that biological parents’ procedural rights, including their right to have access to proceedings in order to have a care order lifted or restrictions on contact with their child relaxed, form an integral part of their right to respect for their family life afforded by Article 8 of the Convention (see, for example, M.L. v. Norway, cited above, § 95). 155. As to the particular aspect of the case which turns upon the applicant’s Muslim faith and her wish that X be brought up in accordance with her religious beliefs and background, it should be noted that the High Court acknowledged that the interest in ensuring X’s attachment to the foster home environment had to be balanced against other weighty considerations. The latter related not only to the fact, referred to above, that the adoptive parents had been unwilling to apply for an open adoption, but also to aspects relating to ethnicity, culture and religion, and religious conversion, particularly in the light of the differences between the applicant’s and the prospective adoptive parents’ religious faiths (see paragraph 51 above). 156. In this connection, the High Court took evidence from two expert witnesses who provided information about obstacles to adoption in Islam; one of these experts had emphasised that each case had to be assessed on the basis of the child’s needs (see paragraph 52 above). 157. Furthermore, on examining sources of international law, the High Court did not find that it could be inferred from these that the adoption of a child of a Muslim background in Norway was prohibited. The Court takes particular note of the High Court’s reliance on Article 20(3) of the United Nations Convention on the Rights of the Child, affirming that when possible solutions, including adoption, were assessed, “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” (see paragraph 53 above), in other words on a standard that in substance corresponds to and is in compliance with the requirements of the Convention (see paragraphs 143 ‑ 144 above). 158. The High Court also examined how the applicant would perceive adoption in view of her religious values (see paragraph 55 above). It also commented on the choice of foster home in the case, and presumed in that context that there had been no foster parents available who had a cultural background more similar to that of the applicant. It noted that it was known that there was a serious shortage of foster parents from minority backgrounds and that, regardless of how the choice of foster home was otherwise evaluated, the initial placement had a bearing on the assessment of what was in X’s best interests at the time of its judgment (see paragraph 54 above). Furthermore, the High Court looked into what could be considered as X’s own values at the time of the possible adoption, in the light of his upbringing by his foster parents (see paragraph 55 above). It further noted that the religious differences in question could also create difficulties with regard to continuing the foster home arrangement, before it effectively concluded that decisive importance ought to be attached to how adoption would create clarity, strengthen the development of X’s identity, and make him an equal member of the family with which he lived (see paragraph 56 above). 159. The Court restates that its jurisdiction in the present instance is limited to the proceedings in 2013-2015 (see paragraphs 130-133 above). It follows that the decision in which X’s foster home was chosen in 2010 falls outside its jurisdiction. However, as it transpires from the High Court’s reasoning, referred to in the preceding paragraph, the choice of foster home made in 2010 was a relevant consideration for its 2015 assessment of the issue of deprivation of parental responsibility and authorisation for adoption, in that the initial placement had a significant bearing on what was considered to be in X’s best interests at the time of its judgment. 160. In the proceedings before the Court, the respondent Government adduced materials showing that the domestic authorities had at the time made efforts to find a foster home which matched the applicant’s interests (see paragraphs 16 to 18 above). After the care order had been issued, the applicant was informed that it had not been possible to find a Somali home (see paragraph 27 above), and in the course of her appeal against the care order, she dropped the alternative claim for X to be placed in a Somali or Muslim foster home (see paragraph 28 above). 161. The Court notes that the applicant’s rights under Article 8 of the Convention, as interpreted in the light of Article 9, could be complied with not only by ultimately finding a foster home which corresponded to her cultural and religious background. It refers to the assessments of the domestic courts of the various interests that have to be taken into account throughout the whole process in cases of this nature where the child’s best interest must remain paramount (see, in particular, paragraphs 23-26, 36-37 and 51-56 above) and to the relatively broad agreement in international law that domestic authorities in circumstances such as those in the present case are bound by an obligation of means, not one of result (see paragraphs 80 -82 above). Nor can the Court question the fact that, on the basis of the information available, the actions of the authorities included efforts, which ultimately proved unsuccessful, to find a foster home for X at the outset that was more suitable from this perspective (see paragraph 17 above). However, the Grand Chamber agrees with the Chamber (see paragraph 64 of the Chamber judgment) that the arrangements made thereafter as to the applicant’s ability to have regular contact with her child (see paragraph 152 above), culminating in the decision to allow for X’s adoption (see paragraphs 44-56 above) failed to take due account of the applicant’s interest in allowing X to retain at least some ties to his cultural and religious origins. 162. Having regard to all of the above considerations, the Court is not satisfied that in depriving the applicant of her parental responsibility in respect of X and authorising his adoption by the foster parents, the domestic authorities attached sufficient weight to the applicant’s right to respect for family life, in particular to the mother and child’s mutual interest in maintaining their family ties and personal relations and hence the possibility for them to maintain contact. The reasons advanced in support of the decision were not sufficient to demonstrate that the circumstances of the case were so exceptional as to justify a complete and definite severance of the ties between X and the applicant, or that the decision to that effect was motivated by an overriding requirement pertaining to X’s best interests. Emphasising the gravity of the interference and the seriousness of the interests at stake, the Court also considers that the decision-making process leading to the applicant’s ties with X being definitively cut off, was not conducted in such a way as to ensure that all of her views and interests were duly taken into account. There has accordingly been a violation of Article 8. APPLICATION OF ARTICLEs 41 and 46 OF THE CONVENTIONArticle 41 of the Convention Article 41 of the Convention Article 41 of the Convention 163. 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 164. Before the Grand Chamber, the applicant claimed compensation in respect of non-pecuniary damage but did not specify any amount. 165. The Government made no specific remarks to the claim. 166. The Court observes that the applicant did not make any claims for just satisfaction in her reply of 23 March 2017 to the Court’s letter of 9 February 2017, or in any other manner within the deadline set by the Court in that letter. Nor did she make any such claim at any other point during the ordinary proceedings before the Chamber. The Court also observes that in the applicant’s request of 17 March 2020 for revision of the Chamber’s judgment in order to include an award in respect of just satisfaction, she stated that her failure to file a claim in respect of just satisfaction had been owing only to an oversight. 167. Under Rule 60 § 2 of the Rules of Court an applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits. If the applicant fails to comply with these requirements, the Court may reject the claim in whole or in part (Rule 60 § 3). In its above letter to the applicant dated 9 February 2017, the Court drew her attention to these matters. 168. Moreover, the Court’s practice in cases referred under Article 43 of the Convention has been generally that the just satisfaction claim remains the same as that originally submitted before the Chamber, an applicant only being allowed at this stage to submit claims for costs and expenses incurred in relation to the proceedings before the Grand Chamber (see Nagmetov v. Russia [GC], no. 35589/08, § 63, 30 March 2017). 169. Indeed, in Nagmetov, cited above, the Court adopted an approach to be applied in exceptional situations in order to decide on whether the Court should make an award of just satisfaction. It held that it was first necessary to ascertain that a number of prerequisites had been met, before weighing the compelling considerations in favour of making an award, in the absence of a properly made “claim” for just satisfaction. 170. In the instant case, however, the case file discloses no explicit wish from the applicant to file a claim for just satisfaction in the ordinary proceedings before the Chamber (contrast Nagmetov, cited above, § 85). Having regard to Rule 60, it therefore makes no award in respect of non-pecuniary damage under Article 41 of the Convention. Costs and expenses 171. The applicant did claim a total of 383,906.25 Norwegian kroner (NOK), approximately 37,650 euros (EUR), for the costs and expenses incurred before the Grand Chamber. 172. The costs and expenses related to her counsel having worked for 30 hours on the request for referral to the Grand Chamber, drafting the applicant’s memorial before the Grand Chamber, and researching the case documents in that connection. Furthermore, the applicant’s counsel had worked for 35 hours on reviewing the Government’s memorial and preparing the draft for her oral pleadings before the Grand Chamber. Requesting NOK 2,500 per hour, compensation for counsel’s work thus amounted to NOK 162,500, approximately EUR 16,000. 173. Furthermore, the applicant’s costs and expenses included her adviser Mr Henriksen having worked 10 hours with research into aspects of facts, Norwegian law and the Court’s case-law, as well as doctrine, and contributing to drafting the applicant’s memorial. He had also worked for 15 hours on reviewing the Government’s memorial and reviewing and contributing to counsel’s draft for the oral pleading, and he had attended the Grand Chamber’s hearing via videoconferencing technology. Requesting NOK 2,500 per hour, compensation for Mr Henriksen’s work thus amounted to NOK 62,500, approximately EUR 6,100. 174. In addition, the applicant had engaged as advisers Mr Andenæs and Mr Bjørge, who had each spent 10 hours researching the Court’s case-law and the doctrine, and on reviewing and contributing to the draft of the applicant’s memorial before the Grand Chamber. Moreover, Mr Andenæs and Mr Bjørge had each spent 10 hours reviewing the Government’s memorial, reviewing and contributing to counsel’s draft for her oral pleadings, and attending the Court’s hearing via videoconferencing technology. Requesting NOK 2,500 per hour, compensation to Mr Andenæs and Mr Bjørge thus amounted to NOK 100,000, approximately EUR 9,800. 175. Moreover, the applicant had incurred translation expenses of NOK 27,281.25 when she filed her memorial before the Grand Chamber, and an additional NOK 10,875 before the hearing, amounting to NOK 38,156.25, approximately EUR 3,700. She had also engaged a sound technician to be present for the hearing before the Grand Chamber and the corresponding testing sessions, which amounted to NOK 8,750, approximately EUR 850. She also sought reimbursement of the expenses incurred by renting the premises from where the applicant and her counsel had participated in the Court’s hearing by way of videoconferencing technology, amounting to NOK 12,000, approximately EUR 1,200. Expenses for the applicant’s own travel and accommodation, as well as the premises for the hearing, were covered by the Council of Europe’s legal aid scheme. 176. The Government did not make any submissions in respect of the applicant’s claim for costs and expenses. 177. 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 30,000 covering costs for the proceedings before the Grand Chamber. Default interest 178. 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 179. In her pleadings before the Grand Chamber, the applicant argued, for the first time in the course of the proceedings before the Court, that the Court should indicate individual measures under Article 46 of the Convention. Without clearly specifying what measures she envisioned, she referred in particular to the possibility of ordering a reopening of the adoption proceedings. 180. The Court reiterates that under 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 its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see, among other authorities, Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 311, 1 December 2020). 181. The Court further notes that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions and spirit of the Court’s judgment. However, in certain special circumstances the Court has found it useful to indicate to a respondent State the type of measures that might be taken to put an end to the situation – often a systemic one – which has given rise to the finding of a violation (ibid., § 312). 182. As to the applicant’s request in the instant case, the Court firstly notes that in a case of this type, in general the best interests of the child must be a paramount consideration also when it is to consider indication of any individual measures to be taken under Article 46 of the Convention (see, mutatis mutandis, Haddad v. Spain, no. 16572/17, § 79, 18 June 2019; and Omorefe v. Spain, no. 69339/16, § 70, 23 June 2020). 183. The Court notes that X and his adoptive parents currently enjoy family life together, and that individual measures could ultimately entail an interference with their respect for that family life. It follows that facts and circumstances relevant to Article 46 of the Convention could raise new issues which are not addressed by the present judgment on the merits (see, mutatis mutandis, Johansen v. Norway (dec.), no. 12750/02, 10 October 2002). 184. Furthermore, although the applicant did not request any measure of a more general character, the Court observes that, in so far as there might be a certain systemic issue in question, the respondent Government have shown that they are making efforts to implement the judgments rendered by the Court concerning various types of child welfare measures in which violations of Article 8 have been found (see, for example, paragraphs 62-66 above). It also observes that the respondent State is in the process of enacting new legislation (see paragraph 67 above). 185. For the above reasons, the Court does not find that any measures are to be indicated under Article 46 of the Convention. | The Grand Chamber decided to examine the applicant’s wish to have her son brought up in line with her Muslim faith as an integral part of her complaint under Article 8 (right to respect for private and family life) of the Convention, as interpreted and applied in the light of Article 9 (freedom of religion) of the Convention. In the present case, it held that there had been a violation of Article 8. The Court pointed out, in particular, that various interests had been taken into account when placing the applicant’s son in care, not just whether the foster home would correspond to the mother’s cultural and religious background, and that that had complied with her rights. However, the ensuing contact arrangements between mother and son, which had been very limited and had culminated in adoption, had failed to take account of the mother’s interest in allowing her son to retain at least some ties to his cultural and religious origins. Indeed, there had been shortcomings in the overall decision-making process leading to the adoption, which had not given sufficient weight to the mother and child’s mutual interest in maintaining ties. |
594 | Case-law of the European Court of Human Rights | II. RELEVANT DOMESTIC LAW AND PRACTICE 42. Article 72 of the Constitution provides: “Patriotic service is a right and a duty for every Turkish citizen. The conditions in which that service shall be performed or deemed to have been performed in the armed forces or civil service shall be laid down by law.” 43. The legal provisions currently in force govern only the performance of national service in the armed forces. No alternative civil service is provided for by law. 44. Section 1 of the Military Service Act (Law no. 1111 of 17 July 1927 ) reads: “ ... every man of Turkish nationality shall be obliged to perform military service.” 45. Under section 10(2) of the Military Service Act, when the number of conscripts exceeds the requirements of the armed forces, they may be allowed, after carrying out basic military training, to perform military service for a shorter period in return for the payment of a tax, or to finish their service in the public sector. 46. The Military Penal Code stipulates that once they have been placed on the muster rolls for military service, conscripts are required to report to the designated military unit, failing which they will be regarded as unlawfully absent and liable to a criminal penalty under Article 63 of the Military Penal Code. Any additional act of disobedience is regarded as “persistent disobedience” and falls under Article 87/1 of the Military Penal Code. 47. The relevant passage from Article 155 of the Criminal Code reads as follows: “ ... Incitement to evade military service. It shall be an offence punishable by imprisonment of two months to two years and a fine ... – except in the cases provided for in the preceding Articles – to incite ... conscripts to evade military service ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 48. The applicant complained that he had been prosecuted and convicted on account of his beliefs as a pacifist and conscientious objector. In this connection he relied on Articles 3, 5, 8 and 9 of the Convention. A. The parties ’ submissions 49. The applicant observed that every time he had refused to wear military uniform he had been convicted and imprisoned. After each release he had been escorted back to his regiment and then once again convicted and imprisoned for refusing to wear uniform. He submitted that the series of proceedings and convictions that he had had to face as a result of his beliefs amounted to a continuous situation. For the applicant, that interminable series of prosecutions and convictions constituted interference contrary to Article 9 and was not proportionate to the aims pursued by the national authorities. The applicant further argued that recent developments in Europe showed that the right to refuse to perform military service and to opt for conscientious objection had now become an established right. The new member States of the Council of Europe had, in principle, all recognised such a right. The European Union ’ s Charter of Fundamental Rights had also recognised the right to conscientious objection. He alleged that Turkey was the only country, among the twenty-six States in the Council of Europe which had enacted a special law on military service, not to have recognised that right. 50. The Government submitted that Article 9 was not applicable in the present case. They argued that, according to the settled case-law of the Convention organs, the Convention did not afford a right to conscientious objection per se. 51. As to the merits, the Government pointed out that in domestic law, the obligation to perform military service applied to all men of Turkish nationality and did not permit any exception on grounds of conscience. They noted that the applicant had been found guilty of military insubordination for having breached the rules on military discipline. For the Government, the offence with which the applicant had been charged was likely to cause conscripts some disquiet, or even disruption, and could legitimately justify a criminal penalty. The Government, referring to the cases of Heudens v. Belgium (no. 24630/94, Commission decision of 22 May 1995) and Autio v. Finland (no. 17086/90, Commission decision of 6 December 1991), further argued that Article 9 of the Convention should be interpreted in the light of Article 4 and that the right of conscientious objection was not recognised as such by the Convention. B. The Court ’ s assessment 52. In its decision on the admissibility of the application, the Court decided to deal with the applicability of Article 9 at the same time as the merits. However, it considers that the present case should be examined under Article 3 of the Convention, for the following reasons. 53. The Court points out that, in its Thlimmenos v. Greece judgment ([GC], no. 34369/97, § 43, ECHR 2000 ‑ IV), it did not find it necessary to examine whether the applicant ’ s initial conviction and the authorities ’ subsequent refusal to appoint him amounted to interference with his rights under Article 9 § 1. In particular, the Court acknowledged that it did not have to address, in that case, the question whether, notwithstanding the wording of Article 4 § 3 (b), the imposition of such sanctions on conscientious objectors to compulsory military service might in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9 § 1. 54. The same applies in the present case. As the case raises serious questions under Article 3 of the Convention, the Court does not find it necessary to pursue its examination of the applicability of Article 9. 55. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 56. This provision enshrines one of the most fundamental values of democratic society (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 34, § 88) and makes no provision for exceptions. 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 of Judgments and Decisions 1996 ‑ V, p. 1855, § 79). 57. 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 and its physical or mental effects (see, among other authorities, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). Moreover, in assessing the evidence before it to decide whether or not there has been treatment in breach of Article 3, 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. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (ibid., p. 65, § 161). 58. Treatment will be considered to be “inhuman” within the meaning of Article 3 because, inter alia, it was premeditated, was applied over a long period of time and caused 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 was to humiliate and debase the person in question and whether, as far as the consequences are concerned, it has 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 every arrest or detention (see, mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821 ‑ 22, § 55). When assessing the effects of the conditions of detention on the applicant, account also has to be taken of the cumulative effects of those conditions (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001 ‑ II). 59. In the light of the above, the Court considers that, in the present case, the applicant ’ s successive convictions, and the continuing liability to prosecution that he faces for refusing to wear uniform on account of his philosophical beliefs, have certainly placed him in a situation of humiliation or debasement. The Court has to address the question whether that situation is different from the usual degree of humiliation inherent in criminal conviction or detention. 60. The Court notes in the present case that, despite the large number of times the applicant has been prosecuted and convicted, the punishment has not exempted him from the obligation to perform his military service. He has already been sentenced eight times to terms of imprisonment for refusing to wear uniform. Upon each release from prison after serving his sentence, he has been escorted back to his regiment, where, upon his refusal to perform military service or put on uniform, he has once again been convicted and transferred to prison. Moreover, he has to live the rest of his life with the risk of repeatedly being sent to prison if he persists in refusing to perform compulsory military service. 61. The Court notes in that connection that there is no specific provision in Turkish law governing penalties for those who refuse to wear uniform on grounds of conscience or religion. It seems that the relevant applicable rules are provisions of the Military Penal Code which classify as an offence any refusal to obey the orders of a superior officer. That legal framework is evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one ’ s beliefs. Because of the unsuitable nature of the general legislation applied to his situation the applicant ran, and still runs, the risk of an interminable series of prosecutions and criminal convictions. 62. The Court points out that, in the Thlimmenos case, after noting that the applicant had already served a prison sentence for his refusal to wear uniform, it found that his exclusion from the profession of chartered accountant, as a second sanction, was disproportionate ( see Thlimmenos, cited above, § 47). In the present case, the numerous criminal proceedings brought against the applicant, the cumulative effects of the ensuing criminal convictions and the constant alternation between prosecution and imprisonment, together with the possibility that he would face prosecution for the rest of his life, are disproportionate to the aim of ensuring that he performs his military service. They are aimed more at repressing the applicant ’ s intellectual personality, inspiring in him feelings of fear, anguish and vulnerability capable of humiliating and debasing him and breaking his resistance and will. The clandestine life, amounting almost to “civil death”, which the applicant has been compelled to adopt is incompatible with the punishment regime of a democratic society. 63. Under these circumstances, the Court considers that, taken as a whole and regard being had to its gravity and repetitive nature, the treatment inflicted on the applicant has caused him severe pain and suffering which goes beyond the normal element of humiliation inherent in any criminal sentence or detention. In the aggregate, the acts concerned constitute degrading treatment within the meaning of Article 3 of the Convention. 64. In the light of the above, the Court holds that there has been a violation of Article 3 of the Convention. II. OTHER COMPLAINTS 65. On the basis of the same facts, the applicant further alleged that there had been a violation of Articles 5, 8 and 9 of the Convention. 66. Reiterating the arguments that they had submitted in connection with the complaints set out above, the Government considered that these complaints too should be dismissed. 67. The applicant maintained these complaints. 68. After examining the complaints, the Court notes that the facts which the applicant complained of are practically the same as those which underlay the complaints it examined in the previous parts of the judgment. It accordingly takes the view that it is not necessary to give a separate ruling on the complaints under Articles 5, 8 and 9 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 69. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 70. The applicant submitted that, if the Court found that there had been a violation of Article 9, the Government should be requested to enact legislation governing conscientious objection, in accordance with Recommendation no. R (87) 8 of the Committee of Ministers and Recommendation no. 1518 (2001) of the Parliamentary Assembly, to set aside his convictions and to discontinue proceedings against him. 71. The applicant claimed the sum of 20,000 euros (EUR) for the non ‑ pecuniary damage that he claimed to have sustained on account of the anguish caused by the nine criminal prosecutions that had all resulted in convictions, together with his 701 days of imprisonment and the risk of being arrested at any time as a deserter. 72. The Government considered that the amount claimed by the applicant was excessive and that the finding of a violation, if that were the Court ’ s decision, would be sufficient to make good the damage. 73. 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, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 ‑ IV ). 74. Moreover, having regard to all the circumstances of the case, the Court acknowledges that the applicant has sustained non-pecuniary damage that the finding of a violation would not be sufficient to make good. Ruling on an equitable basis, it awards the applicant EUR 10,000 in respect of that damage. B. Costs and expenses 75. The applicant claimed 5,250 pounds sterling (GBP), equivalent to EUR 7,525.37, explaining that that sum was broken down into GBP 4,000 for his lawyers ’ fees, GBP 750 for research costs and GBP 500 for sundry expenses. 76. The Government submitted that those claims were manifestly excessive. They pointed out that no documents had been submitted to justify the amounts charged by the applicant ’ s lawyers. 77. The Court firstly observes that the applicant has not submitted full details of the number of hours ’ work completed by his lawyer or any bill of costs or fees. In accordance with Rule 60 § 2 of the Rules of Court, it cannot therefore allow the claim in full. It is nevertheless true that the applicant must have incurred some costs in respect of the work completed by his lawyers for purposes of his representation in this case, which is a somewhat complex one. Accordingly, the Court considers it reasonable to award the applicant the sum of EUR 1,000. C. Default interest 78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The European Court of Human Rights found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, holding in particular that the applicable legal framework did not provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one’s beliefs. Because of the nature of the legislation, the applicant ran the risk of an interminable series of prosecutions and criminal convictions. The constant alternation between prosecutions and terms of imprisonment, together with the possibility that the applicant would be liable to prosecution for the rest of his life, had been disproportionate to the aim of ensuring that he did his military service. |
1,029 | Article 2 (right to life) of the Convention | II. RELEVANT DOMESTIC LAW AND PRACTICE 133. Article 2 of the Gibraltar Constitution provides: "1. No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. 2. A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable: (a) for the defence of any person from violence or for the defence of property; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; ... (d) in order to prevent the commission by that person of a criminal offence." 134. The relevant domestic case-law establishes that the reasonableness of the use of force has to be decided on the basis of the facts which the user of the force honestly believed to exist: this involves the subjective test as to what the user believed and an objective test as to whether he had reasonable grounds for that belief. Given that honest and reasonable belief, it must then be determined whether it was reasonable to use the force in question in the prevention of crime or to effect an arrest (see, for example, Lynch v. Ministry of Defence [1983] Northern Ireland Law Reports 216; R v. Gladstone Williams [1983] 78 Criminal Appeal Reports 276, at p. 281; and R v. Thain [1985] Northern Ireland Law Reports 457, at p. 462). 135. The test of whether the use of force is reasonable, whether in self-defence or to prevent crime or effect an arrest, is a strict one. It was described in the following terms in the report of the Royal Commission appointed to consider the law relating to indictable offences ([1879] 36 House of Lords Papers 117, at p. 167): "We take one great principle of the common law to be, that though it sanctions the defence of a man ’ s person, liberty and property against illegal violence, and permits the use of force to prevent crimes to preserve the public peace and to bring offenders to justice, yet all this is subject to the restriction that the force used is necessary; that is, that the mischief sought to be prevented could not be prevented by less violent means; and that the mischief done by or which might reasonably be anticipated from the force used is not disproportionate to the injury or mischief, which it is intended to prevent." Lord Justice McGonigal in Attorney General for Northern Ireland ’ s Reference ([1976] Northern Ireland Law Reports 169 (Court of Appeal)) stated his understanding of this approach as follows (at p. 187): "... it appears to me that, when one is considering whether force used in any particular circumstances was reasonable, the test of reasonableness should be determined in the manner set out in that paragraph. It raises two questions: (a) Could the mischief sought to be prevented have been prevented by less violent means? (b) Was the mischief done or which could reasonably be anticipated from the force used disproportionate to the injury or mischief which it was intended to prevent? These are questions to be determined objectively but based on the actions of reasonable men who act in the circumstances and in the light of the beliefs which the accused honestly believed existed and held. Force is not reasonable if (a) greater than that necessary, or (b) if the injury it causes is disproportionately greater than the evil to be prevented." 136. The document annexed to the operational order of the Commissioner of Police entitled "Firearms - rules of engagement" provided in so far as relevant: "General rules 1. Do not use more force than necessary to achieve your objective. 2. If you use firearms you should do so with care for the safety of persons in the vicinity. 3. Warning before firing (a) A warning should, if practicable, be given before opening fire. It should be as loud as possible and must include an order to stop attacking and a statement that fire will be opened if the orders are not obeyed. (b) You may fire without warning in circumstances where the giving of a warning or any delay in firing could lead to death or serious injury to a person whom it is your duty to protect, or to yourself, or to another member in your operation. 4. Opening fire You may open fire against a hostage taker (a) If he is using a firearm or any other weapon or exploding a device and there is a danger that you or any member involved in the operation, or a person whom it is your duty to protect, may be killed or seriously injured. (b) If he is about to use a firearm or any other weapon or about to explode an explosive device and his action is likely to endanger life or cause serious injury to you or another member involved in the operation, or any person whom it is your duty to protect ... 5. If he is in the course of placing an explosive charge in or near any vehicle, ship, building or installation which, if exploded, would endanger life or cause serious injury to you or another member involved in the operation or to any person whom it is your duty to protect and there is no other way to protect those in danger ..." 137. Also attached to the operational order was a guide to police officers in the use of firearms which read: "Firearms: Use by Police. The object of any police firearms operation is that the armed criminal is arrested with the least possible danger to all concerned. It is the first duty of the police to protect the general public, but the police should not endanger their lives or the lives of their colleagues for the sake of attempting to make an early arrest. The physical welfare of a criminal armed with a firearm should not be given greater consideration than that of a police officer, and unnecessary risks must not be taken by the police. In their full use of firearms, as in the use of any force, the police are controlled by the restrictions imposed by the law. The most important point which emerges from any study of the law on this subject is that the responsibility is an individual one. Any police officer who uses a firearm may be answerable to the courts or to a coroner ’ s inquest and, if his actions were unlawful (or improper), then he as an individual may be charged with murder, manslaughter or unlawful wounding. Similarly, if his use of a firearm was unlawful or negligent the individual could find himself defending a civil case in which substantial damages were being claimed against him. That a similar claim could be made against the Commissioner of Police will not relieve the individual of his liabilities. The fact that a police officer used his firearms under the orders of a superior does not, of itself, exempt him from criminal liability. When a police officer is issued with a firearm he is not thereby given any form of authority to use it otherwise than strictly in accordance with the law. Similarly, when an officer is briefed about an operation, information about a criminal may indicate that he is desperate and dangerous. Whilst this will be one of the factors to consider it does not of itself justify shooting at him. The final responsibility for his actions rests on the individual and therefore the final decision about whether a shot will or will not be fired at a particular moment can only be made by the individual. That decision must be made with a clear knowledge of the law on the subject and in the light of the conditions prevailing at the time." PROCEEDINGS BEFORE THE COMMISSION 141. The applicants lodged their application (no. 18984/91) with the Commission on 14 August 1991. They complained that the killings of Daniel McCann, Mairead Farrell and Sean Savage by members of the SAS (Special Air Service) constituted a violation of Article 2 (art. 2) of the Convention. 142. On 3 September 1993 the Commission declared the applicants ’ complaint admissible. In its report of 4 March 1994 (Article 31) (art. 31), it expressed the opinion that there had been no violation of Article 2 (art. 2) (eleven votes to six). The full text of the Commission ’ s opinion and of the three dissenting opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 143. The Government submitted that the deprivations of life to which the applications relate were justified under Article 2 para. 2 (a) (art. 2-2-a) as resulting from the use of force which was no more than absolutely necessary in defence of the people of Gibraltar from unlawful violence and the Court was invited to find that the facts disclosed no breach of Article 2 (art. 2) of the Convention in respect of any of the three deceased. 144. The applicants submitted that the Government have not shown beyond reasonable doubt that the planning and execution of the operation was in accordance with Article 2 para. 2 (art. 2-2) of the Convention. Accordingly, the killings were not absolutely necessary within the meaning of this provision (art. 2-2). AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 (art. 2) OF THE CONVENTION 145. The applicants alleged that the killing of Mr McCann, Ms Farrell and Mr Savage by members of the security forces constituted a violation of Article 2 (art. 2) of the Convention which reads: "1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article (art. 2) when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection." A. Interpretation of Article 2 (art. 2) 1. General approach 146. The Court ’ s approach to the interpretation of Article 2 (art. 2) must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 87, and the Loizidou v. Turkey (Preliminary Objections) judgment of 23 March 1995, Series A no. 310, p. 27, para. 72). 147. It must also be borne in mind that, as a provision (art. 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15 (art. 15). Together with Article 3 (art. 15+3) of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe (see the above-mentioned Soering judgment, p. 34, para. 88). As such, its provisions must be strictly construed. 148. The Court considers that the exceptions delineated in paragraph 2 (art. 2-2) indicate that this provision (art. 2-2) extends to, but is not concerned exclusively with, intentional killing. As the Commission has pointed out, the text of Article 2 (art. 2), read as a whole, demonstrates that paragraph 2 (art. 2-2) does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to "use force" which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than "absolutely necessary" for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) (art. 2-2-a, art. 2-2-b, art. 2-2-c) (see application no. 10044/82, Stewart v. the United Kingdom, 10 July 1984, Decisions and Reports 39, pp. 169-71). 149. In this respect the use of the term "absolutely necessary" in Article 2 para. 2 (art. 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 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) 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 (art. 2-2-a-b-c). 150. In keeping with the importance of this provision (art. 2) in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination. 2. The obligation to protect life in Article 2 para. 1 (art. 2-1) (a) Compatibility of national law and practice with Article 2 (art. 2) standards 151. The applicants submitted under this head that Article 2 para. 1 (art. 2-1) of the Convention imposed a positive duty on States to "protect" life. In particular, the national law must strictly control and limit the circumstances in which a person may be deprived of his life by agents of the State. The State must also give appropriate training, instructions and briefing to its soldiers and other agents who may use force and exercise strict control over any operations which may involve the use of lethal force. In their view, the relevant domestic law was vague and general and did not encompass the Article 2 (art. 2) standard of absolute necessity. This in itself constituted a violation of Article 2 para. 1 (art. 2-1). There was also a violation of this provision (art. 2-1) in that the law did not require that the agents of the State be trained in accordance with the strict standards of Article 2 para. 1 (art. 2-1). 152. For the Commission, with whom the Government agreed, Article 2 (art. 2) was not to be interpreted as requiring an identical formulation in domestic law. Its requirements were satisfied if the substance of the Convention right was protected by domestic law. 153. The Court recalls that the Convention does not oblige Contracting Parties to incorporate its provisions into national law (see, inter alia, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 47, para. 84, and The Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 39, para. 90). Furthermore, it is not the role of the Convention institutions to examine in abstracto the compatibility of national legislative or constitutional provisions with the requirements of the Convention (see, for example, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 18, para. 33). 154. Bearing the above in mind, it is noted that Article 2 of the Gibraltar Constitution (see paragraph 133 above) is similar to Article 2 (art. 2) of the Convention with the exception that the standard of justification for the use of force which results in the deprivation of life is that of "reasonably justifiable" as opposed to "absolutely necessary" in paragraph 2 of Article 2 (art. 2-2). While the Convention standard appears on its face to be stricter than the relevant national standard, it has been submitted by the Government that, having regard to the manner in which the standard is interpreted and applied by the national courts (see paragraphs 134-35 above), there is no significant difference in substance between the two concepts. 155. In the Court ’ s view, whatever the validity of this submission, the difference between the two standards is not sufficiently great that a violation of Article 2 para. 1 (art. 2-1) could be found on this ground alone. 156. As regards the applicants ’ arguments concerning the training and instruction of the agents of the State and the need for operational control, the Court considers that these are matters which, in the context of the present case, raise issues under Article 2 para. 2 (art. 2-2) concerning the proportionality of the State ’ s response to the perceived threat of a terrorist attack. It suffices to note in this respect that the rules of engagement issued to the soldiers and the police in the present case provide a series of rules governing the use of force which carefully reflect the national standard as well as the substance of the Convention standard (see paragraphs 16, 18 and 136-37 above). (b) Adequacy of the inquest proceedings as an investigative mechanism 157. The applicants also submitted under this head, with reference to the relevant standards contained in the UN Force and Firearms Principles (see paragraphs 138-39 above), that the State must provide an effective ex post facto procedure for establishing the facts surrounding a killing by agents of the State through an independent judicial process to which relatives must have full access. Together with the amici curiae, Amnesty International and British-Irish Rights Watch and Others, they submitted that this procedural requirement had not been satisfied by the inquest procedure because of a combination of shortcomings. In particular, they complained that no independent police investigation took place of any aspect of the operation leading to the shootings; that normal scene-of-crime procedures were not followed; that not all eyewitnesses were traced or interviewed by the police; that the Coroner sat with a jury which was drawn from a "garrison" town with close ties to the military; that the Coroner refused to allow the jury to be screened to exclude members who were Crown servants; that the public interest certificates issued by the relevant Government authorities effectively curtailed an examination of the overall operation. They further contended that they did not enjoy equality of representation with the Crown in the course of the inquest proceedings and were thus severely handicapped in their efforts to find the truth since, inter alia, they had had no legal aid and were only represented by two lawyers; witness statements had been made available in advance to the Crown and to the lawyers representing the police and the soldiers but, with the exception of ballistic and pathology reports, not to their lawyers; they did not have the necessary resources to pay for copies of the daily transcript of the proceedings which amounted to £500-£700. 158. The Government submitted that the inquest was an effective, independent and public review mechanism which more than satisfied any procedural requirement which might be read into Article 2 para. 1 (art. 2-1) of the Convention. In particular, they maintained that it would not be appropriate for the Court to seek to identify a single set of standards by which all investigations into the circumstances of death should be assessed. Moreover, it was important to distinguish between such an investigation and civil proceedings brought to seek a remedy for an alleged violation of the right to life. Finally, they invited the Court to reject the contention by the intervenors British-Irish Rights Watch and Others that a violation of Article 2 para. 1 (art. 2-1) will have occurred whenever the Court finds serious differences between the UN Principles on Extra-Legal Executions and the investigation conducted into any particular death (see paragraph 140 above). 159. For the Commission, the inquest subjected the actions of the State to extensive, independent and highly public scrutiny and thereby provided sufficient procedural safeguards for the purposes of Article 2 (art. 2) of the Convention. 160. The Court considers that it is unnecessary to decide in the present case whether a right of access to court to bring civil proceedings in connection with deprivation of life can be inferred from Article 2 para. 1 (art. 2-1) since this is an issue which would be more appropriately considered under Articles 6 and 13 (art. 6, art. 13) of the Convention - provisions (art. 6, art. 13) that have not been invoked by the applicants. 161. The Court confines itself to noting, like the Commission, that a general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision (art. 2), read in conjunction with the State ’ s general duty under Article 1 (art. 2+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. 162. However, it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings, at which the applicants were legally represented and which involved the hearing of seventy-nine witnesses, did in fact take place. Moreover, the proceedings lasted nineteen days and, as is evident from the inquest ’ s voluminous transcript, involved a detailed review of the events surrounding the killings. Furthermore, it appears from the transcript, including the Coroner ’ s summing-up to the jury, that the lawyers acting on behalf of the applicants were able to examine and cross-examine key witnesses, including the military and police personnel involved in the planning and conduct of the anti-terrorist operation, and to make the submissions they wished to make in the course of the proceedings. 163. In light of the above, the Court does not consider that the alleged various shortcomings in the inquest proceedings, to which reference has been made by both the applicants and the intervenors, substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings. 164. It follows that there has been no breach of Article 2 para. 1 (art. 2-1) of the Convention on this ground. B. Application of Article 2 (art. 2) to the facts of the case 1. General approach to the evaluation of the evidence 165. While accepting that the Convention institutions are not in any formal sense bound by the decisions of the inquest jury, the Government submitted that the verdicts were of central importance to any subsequent examination of the deaths of the deceased. Accordingly, the Court should give substantial weight to the verdicts of the jury in the absence of any indication that those verdicts were perverse or ones which no reasonable tribunal of fact could have reached. In this connection, the jury was uniquely well placed to assess the circumstances surrounding the shootings. The members of the jury heard and saw each of the seventy-nine witnesses giving evidence, including extensive cross-examination. With that benefit they were able to assess the credibility and probative value of the witnesses ’ testimony. The Government pointed out that the jury also heard the submissions of the various parties, including those of the lawyers representing the deceased. 166. The applicants, on the other hand, maintained that inquests are by their very nature ill-equipped to be full and detailed inquiries into controversial killings such as in the present case. Moreover, the inquest did not examine the killings from the standpoint of concepts such as "proportionality" or "absolute necessity" but applied the lesser tests of "reasonable force" or "reasonable necessity". Furthermore, the jury focused on the actions of the soldiers as they opened fire as if it were considering their criminal culpability and not on matters such as the allegedly negligent and reckless planning of the operation. 167. The Commission examined the case on the basis of the observations of the parties and the documents submitted by them, in particular the transcript of the inquest. It did not consider itself bound by the findings of the jury. 168. The Court recalls that under the scheme of the Convention the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). Accordingly, it is only in exceptional circumstances that the Court will use its powers in this area. The Court is not, however, bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it (see, inter alia, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 29, para. 74, and the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29). 169. In the present case neither the Government nor the applicants have, in the proceedings before the Court, sought to contest the facts as they have been found by the Commission although they differ fundamentally as to the conclusions to be drawn from them under Article 2 (art. 2) of the Convention. Having regard to the submissions of those appearing before the Court and to the inquest proceedings, the Court takes the Commission ’ s establishment of the facts and findings on the points summarised in paragraphs 13 to 132 above to be an accurate and reliable account of the facts underlying the present case. 170. As regards the appreciation of these facts from the standpoint of Article 2 (art. 2), the Court observes that the jury had the benefit of listening to the witnesses at first hand, observing their demeanour and assessing the probative value of their testimony. Nevertheless, it must be borne in mind that the jury ’ s finding was limited to a decision of lawful killing and, as is normally the case, did not provide reasons for the conclusion that it reached. In addition, the focus of concern of the inquest proceedings and the standard applied by the jury was whether the killings by the soldiers were reasonably justified in the circumstances as opposed to whether they were "absolutely necessary" under Article 2 para. 2 (art. 2-2) in the sense developed above (see paragraphs 120 and 148-49 above). 171. Against this background, the Court must make its own assessment whether the facts as established by the Commission disclose a violation of Article 2 (art. 2) of the Convention. 172. The applicants further submitted that in examining the actions of the State in a case in which the use of deliberate lethal force was expressly contemplated in writing, the Court should place on the Government the onus of proving, beyond reasonable doubt, that the planning and execution of the operation was in accordance with Article 2 (art. 2) of the Convention. In addition, it should not grant the State authorities the benefit of the doubt as if its criminal liability were at stake. 173. The Court, in determining whether there has been a breach of Article 2 (art. 2) in the present case, is not assessing the criminal responsibility of those directly or indirectly concerned. In accordance with its usual practice therefore it will assess the issues in the light of all the material placed before it by the applicants and by the Government or, if necessary, material obtained of its own motion (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 64, para. 160, and the above-mentioned Cruz Varas and Others judgment, p. 29, para. 75). 2. Applicants ’ allegation that the killings were premeditated 174. The applicants alleged that there had been a premeditated plan to kill the deceased. While conceding that there was no evidence of a direct order from the highest authorities in the Ministry of Defence, they claimed that there was strong circumstantial evidence in support of their allegation. They suggested that a plot to kill could be achieved by other means such as hints and innuendoes, coupled with the choice of a military unit like the SAS which, as indicated by the evidence given by their members at the inquest, was trained to neutralise a target by shooting to kill. Supplying false information of the sort that was actually given to the soldiers in this case would render a fatal shooting likely. The use of the SAS was, in itself, evidence that the killing was intended. 175. They further contended that the Gibraltar police would not have been aware of such an unlawful enterprise. They pointed out that the SAS officer E gave his men secret briefings to which the Gibraltar police were not privy. Moreover, when the soldiers attended the police station after the shootings, they were accompanied by an army lawyer who made it clear that the soldiers were there only for the purpose of handing in their weapons. In addition, the soldiers were immediately flown out of Gibraltar without ever having been interviewed by the police. 176. The applicants referred to the following factors, amongst others, in support of their contention: - The best and safest method of preventing an explosion and capturing the suspects would have been to stop them and their bomb from entering Gibraltar. The authorities had their photographs and knew their names and aliases as well as the passports they were carrying; - If the suspects had been under close observation by the Spanish authorities from Malaga to Gibraltar, as claimed by the journalist, Mr Debelius, the hiring of the white Renault car would have been seen and it would have been known that it did not contain a bomb (see paragraph 128 above); - The above claim is supported by the failure of the authorities to isolate the bomb and clear the area around it in order to protect the public. In Gibraltar there were a large number of soldiers present with experience in the speedy clearance of suspect bomb sites. The only explanation for this lapse in security procedures was that the security services knew that there was no bomb in the car; - Soldier G, who was sent to inspect the car and who reported that there was a suspect car bomb, admitted during the inquest that he was not an expert in radio signal transmission (see paragraph 53 above). This was significant since the sole basis for his assessment was that the radio aerial looked older than the car. A real expert would have thought of removing the aerial to nullify the radio detonator, which could have been done without destabilising the explosive, as testified by Dr Scott. He would have also known that if the suspects had intended to explode a bomb by means of a radio signal they would not have used a rusty aerial - which would reduce the capacity to receive a clear signal - but a clean one (see paragraph 114 above). It also emerged from his evidence that he was not an explosives expert either. There was thus the possibility that the true role of Soldier G was to report that he suspected a car bomb in order to induce the Gibraltar police to sign the document authorising the SAS to employ lethal force. 177. In the Government ’ s submission it was implicit in the jury ’ s verdicts of lawful killing that they found as facts that there was no plot to kill the three terrorists and that the operation in Gibraltar had not been conceived or mounted with this aim in view. The aim of the operation was to effect the lawful arrest of the three terrorists and it was for this purpose that the assistance of the military was sought and given. Furthermore, the jury must have also rejected the applicants ’ contention that Soldiers A, B, C and D had deliberately set out to kill the terrorists, whether acting on express orders or as a result of being given "a nod and a wink". 178. The Commission concluded that there was no evidence to support the applicants ’ claim of a premeditated plot to kill the suspects. 179. The Court observes that it would need to have convincing evidence before it could conclude that there was a premeditated plan, in the sense developed by the applicants. 180. In the light of its own examination of the material before it, the Court does not find it established that there was an execution plot at the highest level of command in the Ministry of Defence or in the Government, or that Soldiers A, B, C and D had been so encouraged or instructed by the superior officers who had briefed them prior to the operation, or indeed that they had decided on their own initiative to kill the suspects irrespective of the existence of any justification for the use of lethal force and in disobedience to the arrest instructions they had received. Nor is there evidence that there was an implicit encouragement by the authorities or hints and innuendoes to execute the three suspects. 181. The factors relied on by the applicants amount to a series of conjectures that the authorities must have known that there was no bomb in the car. However, having regard to the intelligence information that they had received, to the known profiles of the three terrorists, all of whom had a background in explosives, and the fact that Mr Savage was seen to "fiddle" with something before leaving the car (see paragraph 38 above), the belief that the car contained a bomb cannot be described as either implausible or wholly lacking in foundation. 182. In particular, the decision to admit them to Gibraltar, however open to criticism given the risks that it entailed, was in accordance with the arrest policy formulated by the Advisory Group that no effort should be made to apprehend them until all three were present in Gibraltar and there was sufficient evidence of a bombing mission to secure their convictions (see paragraph 37 above). 183. Nor can the Court accept the applicants ’ contention that the use of the SAS, in itself, amounted to evidence that the killing of the suspects was intended. In this respect it notes that the SAS is a special unit which has received specialist training in combating terrorism. It was only natural, therefore, that in light of the advance warning that the authorities received of an impending terrorist attack they would resort to the skill and experience of the SAS in order to deal with the threat in the safest and most informed manner possible. 184. The Court therefore rejects as unsubstantiated the applicants ’ allegations that the killing of the three suspects was premeditated or the product of a tacit agreement amongst those involved in the operation. 3. Conduct and planning of the operation (a) Arguments of those appearing before the Court (1) The applicants 185. The applicants submitted that it would be wrong for the Court, as the Commission had done, to limit its assessment to the question of the possible justification of the soldiers who actually killed the suspects. It must examine the liability of the Government for all aspects of the operation. Indeed, the soldiers may well have been acquitted at a criminal trial if they could have shown that they honestly believed the ungrounded and false information they were given. 186. The soldiers had been told by Officer E (the attack commander) that the three suspects had planted a car bomb in Gibraltar, whereas Soldier G - the bomb-disposal expert - had reported that it was merely a suspect bomb; that it was a remote-control bomb; that each of the suspects could detonate it from anywhere in Gibraltar by the mere flicking of a switch and that they would not hesitate to do so the moment they were challenged. In reality, these "certainties" and "facts" were no more than suspicions or at best dubious assessments. However, they were conveyed as facts to soldiers who not only had been trained to shoot at the merest hint of a threat but also, as emerged from the evidence given during the inquest, to continue to shoot until they had killed their target. In sum, they submitted that the killings came about as a result of incompetence and negligence in the planning and conduct of the anti-terrorist operation to arrest the suspects as well as a failure to maintain a proper balance between the need to meet the threat posed and the right to life of the suspects. (2) The Government 187. The Government submitted that the actions of the soldiers were absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the Convention. Each of them had to make a split-second decision which could have affected a large number of lives. They believed that the movements which they saw the suspects make at the moment they were intercepted gave the impression that the terrorists were about to detonate a bomb. This evidence was confirmed by other witnesses who saw the movements in question. If it is accepted that the soldiers honestly and reasonably believed that the terrorists upon whom they opened fire might have been about to detonate a bomb by pressing a button, then they had no alternative but to open fire. 188. They also pointed out that much of the information available to the authorities and many of the judgments made by them proved to be accurate. The three deceased were an IRA active service unit which was planning an operation in Gibraltar; they did have in their control a large quantity of explosives which were subsequently found in Spain; and the nature of the operation was a car bomb. The risk to the lives of those in Gibraltar was, therefore, both real and extremely serious. 189. The Government further submitted that in examining the planning of the anti-terrorist operation it should be borne in mind that intelligence assessments are necessarily based on incomplete information since only fragments of the true picture will be known. Moreover, experience showed that the IRA were exceptionally ruthless and skilled in counter-surveillance techniques and that they did their best to conceal their intentions from the authorities. In addition, experience in Northern Ireland showed that the IRA is constantly and rapidly developing new technology. They thus had to take into account the possibility that the terrorists might be equipped with more sophisticated or more easily concealable radio-controlled devices than the IRA had previously been known to use. Finally, the consequences of underestimating the threat posed by the active service unit could have been catastrophic. If they had succeeded in detonating a bomb of the type and size found in Spain, everyone in the car-park would have been killed or badly maimed and grievous injuries would have been caused to those in adjacent buildings, which included a school and an old-people ’ s home. 190. The intelligence assessments made in the course of the operation were reasonable ones to make in the light of the inevitably limited amount of information available to the authorities and the potentially devastating consequences of underestimating the terrorists ’ abilities and resources. In this regard the Government made the following observations: - It was believed that a remote-controlled device would be used because it would give the terrorists a better chance of escape and would increase their ability to maximise the proportion of military rather than civilian casualties. Moreover, the IRA had used such a device in Brussels only six weeks before. - It was assumed that any remote-control such as that produced to the Court would be small enough to be readily concealed about the person. The soldiers themselves successfully concealed radios of a similar size about their persons. - As testified by Captain Edwards at the inquest, tests carried out demonstrated that a bomb in the car-park could have been detonated from the spot where the terrorists were shot (see paragraph 116 above). - Past experience strongly suggested that the terrorists ’ detonation device might have been operated by pressing a single button. - As explained by Witness O at the inquest, the use of a blocking car would have been unnecessary because the terrorists would not be expected to have any difficulty in finding a free space on 8 March. It was also dangerous because it would have required two trips into Gibraltar, thereby significantly increasing the risk of detection (see paragraph 23 (point (e) above). - There was no reason to doubt the bona fides of Soldier G ’ s assessment that the car was a suspect car bomb. In the first place his evidence was that he was quite familiar with car bombs. Moreover, the car had been parked by a known bomb-maker who had been seen to "fiddle" with something between the seats and the car aerial appeared to be out of place. IRA car bombs had been known from experience to have specially-fitted aerials and G could not say for certain from an external examination that the car did not contain a bomb (see paragraph 48 above). Furthermore, all three suspects appeared to be leaving Gibraltar. Finally the operation of cordoning off the area around the car began only twenty minutes after the above assessment had been made because of the shortage of available manpower and the fact that the evacuation plans were not intended for implementation until 7 or 8 March. - It would have been reckless for the authorities to assume that the terrorists might not have detonated their bomb if challenged. The IRA were deeply committed terrorists who were, in their view, at war with the United Kingdom and who had in the past shown a reckless disregard for their own safety. There was still a real risk that if they had been faced with a choice between an explosion causing civilian casualties and no explosion at all, the terrorists would have preferred the former. (3) The Commission 191. The Commission considered that, given the soldiers ’ perception of the risk to the lives of the people of Gibraltar, the shooting of the three suspects could be regarded as absolutely necessary for the legitimate aim of the defence of others from unlawful violence. It also concluded that, having regard to the possibility that the suspects had brought in a car bomb which, if detonated, would have occasioned the loss of many lives and the possibility that the suspects could have been able to detonate it when confronted by the soldiers, the planning and execution of the operation by the authorities did not disclose any deliberate design or lack of proper care which might have rendered the use of lethal force disproportionate to the aim of saving lives. (b) The Court ’ s assessment (1) Preliminary considerations 192. In carrying out its examination under Article 2 (art. 2) of the Convention, the Court must bear in mind that the information that the United Kingdom authorities received that there would be a terrorist attack in Gibraltar presented them with a fundamental dilemma. On the one hand, they were required to have regard to their duty to protect the lives of the people in Gibraltar including their own military personnel and, on the other, to have minimum resort to the use of lethal force against those suspected of posing this threat in the light of the obligations flowing from both domestic and international law. 193. Several other factors must also be taken into consideration. In the first place, the authorities were confronted by an active service unit of the IRA composed of persons who had been convicted of bombing offences and a known explosives expert. The IRA, judged by its actions in the past, had demonstrated a disregard for human life, including that of its own members. Secondly, the authorities had had prior warning of the impending terrorist action and thus had ample opportunity to plan their reaction and, in co-ordination with the local Gibraltar authorities, to take measures to foil the attack and arrest the suspects. Inevitably, however, the security authorities could not have been in possession of the full facts and were obliged to formulate their policies on the basis of incomplete hypotheses. 194. Against this background, in determining whether the force used was compatible with Article 2 (art. 2), the Court must carefully scrutinise, as noted above, not only whether the force used by the soldiers was strictly proportionate to the aim of protecting persons against unlawful violence but also whether the anti-terrorist operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force. The Court will consider each of these points in turn. (2) Actions of the soldiers 195. It is recalled that the soldiers who carried out the shooting (A, B, C and D) were informed by their superiors, in essence, that there was a car bomb in place which could be detonated by any of the three suspects by means of a radio-control device which might have been concealed on their persons; that the device could be activated by pressing a button; that they would be likely to detonate the bomb if challenged, thereby causing heavy loss of life and serious injuries, and were also likely to be armed and to resist arrest (see paragraphs 23, 24-27, and 28-31 above). 196. As regards the shooting of Mr McCann and Ms Farrell, the Court recalls the Commission ’ s finding that they were shot at close range after making what appeared to Soldiers A and B to be threatening movements with their hands as if they were going to detonate the bomb (see paragraph 132 above). The evidence indicated that they were shot as they fell to the ground but not as they lay on the ground (see paragraphs 59-67 above). Four witnesses recalled hearing a warning shout (see paragraph 75 above). Officer P corroborated the soldiers ’ evidence as to the hand movements (see paragraph 76 above). Officer Q and Police Constable Parody also confirmed that Ms Farrell had made a sudden, suspicious move towards her handbag (ibid.). 197. As regards the shooting of Mr Savage, the evidence revealed that there was only a matter of seconds between the shooting at the Shell garage (McCann and Farrell) and the shooting at Landport tunnel (Savage). The Commission found that it was unlikely that Soldiers C and D witnessed the first shooting before pursuing Mr Savage who had turned around after being alerted by either the police siren or the shooting (see paragraph 132 above). Soldier C opened fire because Mr Savage moved his right arm to the area of his jacket pocket, thereby giving rise to the fear that he was about to detonate the bomb. In addition, Soldier C had seen something bulky in his pocket which he believed to be a detonating transmitter. Soldier D also opened fire believing that the suspect was trying to detonate the supposed bomb. The soldiers ’ version of events was corroborated in some respects by Witnesses H and J, who saw Mr Savage spin round to face the soldiers in apparent response to the police siren or the first shooting (see paragraphs 83 and 85 above). The Commission found that Mr Savage was shot at close range until he hit the ground and probably in the instant as or after he had hit the ground (see paragraph 132 above). This conclusion was supported by the pathologists ’ evidence at the inquest (see paragraph 110 above). 198. It was subsequently discovered that the suspects were unarmed, that they did not have a detonator device on their persons and that there was no bomb in the car (see paragraphs 93 and 96 above). 199. All four soldiers admitted that they shot to kill. They considered that it was necessary to continue to fire at the suspects until they were rendered physically incapable of detonating a device (see paragraphs 61, 63, 80 and 120 above). According to the pathologists ’ evidence Ms Farrell was hit by eight bullets, Mr McCann by five and Mr Savage by sixteen (see paragraphs 108-10 above). 200. The Court accepts that the soldiers honestly believed, in the light of the information that they had been given, as set out above, that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing serious loss of life (see paragraph 195 above). The actions which they took, in obedience to superior orders, were thus perceived by them as absolutely necessary in order to safeguard innocent lives. It considers that the use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 (art. 2-2) of the Convention may be justified under this provision (art. 2-2) where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law-enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. It follows that, having regard to the dilemma confronting the authorities in the circumstances of the case, the actions of the soldiers do not, in themselves, give rise to a violation of this provision (art. 2-2). 201. The question arises, however, whether the anti-terrorist operation as a whole was controlled and organised in a manner which respected the requirements of Article 2 (art. 2) and whether the information and instructions given to the soldiers which, in effect, rendered inevitable the use of lethal force, took adequately into consideration the right to life of the three suspects. (3) Control and organisation of the operation 202. The Court first observes that, as appears from the operational order of the Commissioner, it had been the intention of the authorities to arrest the suspects at an appropriate stage. Indeed, evidence was given at the inquest that arrest procedures had been practised by the soldiers before 6 March and that efforts had been made to find a suitable place in Gibraltar to detain the suspects after their arrest (see paragraphs 18 and 55 above). 203. It may be questioned why the three suspects were not arrested at the border immediately on their arrival in Gibraltar and why, as emerged from the evidence given by Inspector Ullger, the decision was taken not to prevent them from entering Gibraltar if they were believed to be on a bombing mission. Having had advance warning of the terrorists ’ intentions it would certainly have been possible for the authorities to have mounted an arrest operation. Although surprised at the early arrival of the three suspects, they had a surveillance team at the border and an arrest group nearby (see paragraph 34 above). In addition, the Security Services and the Spanish authorities had photographs of the three suspects, knew their names as well as their aliases and would have known what passports to look for (see paragraph 33 above). 204. On this issue, the Government submitted that at that moment there might not have been sufficient evidence to warrant the detention and trial of the suspects. Moreover, to release them, having alerted them to the authorities ’ state of awareness but leaving them or others free to try again, would obviously increase the risks. Nor could the authorities be sure that those three were the only terrorists they had to deal with or of the manner in which it was proposed to carry out the bombing. 205. The Court confines itself to observing in this respect that the danger to the population of Gibraltar - which is at the heart of the Government ’ s submissions in this case - in not preventing their entry must be considered to outweigh the possible consequences of having insufficient evidence to warrant their detention and trial. In its view, either the authorities knew that there was no bomb in the car - which the Court has already discounted (see paragraph 181 above) - or there was a serious miscalculation by those responsible for controlling the operation. As a result, the scene was set in which the fatal shooting, given the intelligence assessments which had been made, was a foreseeable possibility if not a likelihood. The decision not to stop the three terrorists from entering Gibraltar is thus a relevant factor to take into account under this head. 206. The Court notes that at the briefing on 5 March attended by Soldiers A, B, C, and D it was considered likely that the attack would be by way of a large car bomb. A number of key assessments were made. In particular, it was thought that the terrorists would not use a blocking car; that the bomb would be detonated by a radio-control device; that the detonation could be effected by the pressing of a button; that it was likely that the suspects would detonate the bomb if challenged; that they would be armed and would be likely to use their arms if confronted (see paragraphs 23-31 above). 207. In the event, all of these crucial assumptions, apart from the terrorists ’ intentions to carry out an attack, turned out to be erroneous. Nevertheless, as has been demonstrated by the Government, on the basis of their experience in dealing with the IRA, they were all possible hypotheses in a situation where the true facts were unknown and where the authorities operated on the basis of limited intelligence information. 208. In fact, insufficient allowances appear to have been made for other assumptions. For example, since the bombing was not expected until 8 March when the changing of the guard ceremony was to take place, there was equally the possibility that the three terrorists were on a reconnaissance mission. While this was a factor which was briefly considered, it does not appear to have been regarded as a serious possibility (see paragraph 45 above). In addition, at the briefings or after the suspects had been spotted, it might have been thought unlikely that they would have been prepared to explode the bomb, thereby killing many civilians, as Mr McCann and Ms Farrell strolled towards the border area since this would have increased the risk of detection and capture (see paragraph 57 above). It might also have been thought improbable that at that point they would have set up the transmitter in anticipation to enable them to detonate the supposed bomb immediately if confronted (see paragraph 115 above). Moreover, even if allowances are made for the technological skills of the IRA, the description of the detonation device as a "button job" without the qualifications subsequently described by the experts at the inquest (see paragraphs 115 and 131 above), of which the competent authorities must have been aware, over-simplifies the true nature of these devices. 209. It is further disquieting in this context that the assessment made by Soldier G, after a cursory external examination of the car, that there was a "suspect car bomb" was conveyed to the soldiers, according to their own testimony, as a definite identification that there was such a bomb (see paragraphs 48, and 51-52 above). It is recalled that while Soldier G had experience in car bombs, it transpired that he was not an expert in radio communications or explosives; and that his assessment that there was a suspect car bomb, based on his observation that the car aerial was out of place, was more in the nature of a report that a bomb could not be ruled out (see paragraph 53 above). 210. In the absence of sufficient allowances being made for alternative possibilities, and the definite reporting of the existence of a car bomb which, according to the assessments that had been made, could be detonated at the press of a button, a series of working hypotheses were conveyed to Soldiers A, B, C and D as certainties, thereby making the use of lethal force almost unavoidable. 211. However, the failure to make provision for a margin of error must also be considered in combination with the training of the soldiers to continue shooting once they opened fire until the suspect was dead. As noted by the Coroner in his summing-up to the jury at the inquest, all four soldiers shot to kill the suspects (see paragraphs 61, 63, 80 and 120 above). Soldier E testified that it had been discussed with the soldiers that there was an increased chance that they would have to shoot to kill since there would be less time where there was a "button" device (see paragraph 26 above). Against this background, the authorities were bound by their obligation to respect the right to life of the suspects to exercise the greatest of care in evaluating the information at their disposal before transmitting it to soldiers whose use of firearms automatically involved shooting to kill. 212. Although detailed investigation at the inquest into the training received by the soldiers was prevented by the public interest certificates which had been issued (see paragraph 104, at point 1. (iii) above), it is not clear whether they had been trained or instructed to assess whether the use of firearms to wound their targets may have been warranted by the specific circumstances that confronted them at the moment of arrest. Their reflex action in this vital respect lacks the degree of caution in the use of firearms to be expected from law enforcement personnel in a democratic society, even when dealing with dangerous terrorist suspects, and stands in marked contrast to the standard of care reflected in the instructions in the use of firearms by the police which had been drawn to their attention and which emphasised the legal responsibilities of the individual officer in the light of conditions prevailing at the moment of engagement (see paragraphs 136 and 137 above). This failure by the authorities also suggests a lack of appropriate care in the control and organisation of the arrest operation. 213. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 para. 2 (a) (art. 2-2-a) of the Convention. 214. Accordingly, the Court finds that there has been a breach of Article 2 (art. 2) of the Convention. II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 215. Article 50 (art. 50) of the Convention provides as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 216. The applicants requested the award of damages at the same level as would be awarded under English law to a person who was unlawfully killed by agents of the State. They also asked, in the event of the Court finding that the killings were both unlawful and deliberate or were the result of gross negligence, exemplary damages at the same level as would be awarded under English law to a relative of a person killed in similar circumstances. 217. As regards costs and expenses, they asked for all costs arising directly or indirectly from the killings, including the costs of relatives and lawyers attending the Gibraltar inquest and all Strasbourg costs. The solicitor ’ s costs and expenses in respect of the Gibraltar inquest are estimated at £56,200 and his Strasbourg costs at £28,800. Counsel claimed £16,700 in respect of Strasbourg costs and expenses. 218. The Government contended that, in the event of a finding of a violation, financial compensation in the form of pecuniary and non-pecuniary damages would be unnecessary and inappropriate. As regards the costs incurred before the Strasbourg institutions, they submitted that the applicants should be awarded only the costs actually and necessarily incurred by them and which were reasonable as to quantum. However, as regards the claim for costs in respect of the Gibraltar inquest, they maintained that (1) as a point of principle, the costs of the domestic proceedings, including the costs of the inquest, should not be recoverable under Article 50 (art. 50); (2) since the applicants ’ legal representatives acted free of charge, there can be no basis for an award to the applicants; (3) in any event, the costs claimed were not calculated on the basis of the normal rates of the solicitor concerned. A. Pecuniary and non-pecuniary damage 219. The Court observes that it is not clear from the applicants ’ submissions whether their claim for financial compensation is under the head of pecuniary or non-pecuniary damages or both. In any event, having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar, the Court does not consider it appropriate to make an award under this head. It therefore dismisses the applicants ’ claim for damages. B. Costs and expenses 220. The Court recalls that, in accordance with its case-law, it is only costs which are actually and necessarily incurred and reasonable as to quantum that are recoverable under this head. 221. As regards the Gibraltar costs, the applicants stated in the proceedings before the Commission that their legal representatives had acted free of charge. In this connection, it has not been claimed that they are under any obligation to pay the solicitor the amounts claimed under this item. In these circumstances, the costs cannot be claimed under Article 50 (art. 50) since they have not been actually incurred. 222. As regards the costs and expenses incurred during the Strasbourg proceedings, the Court, making an equitable assessment, awards £22,000 and £16,700 in respect of the solicitor ’ s and counsel ’ s claims respectively, less 37,731 French francs received by way of legal aid from the Council of Europe. | The Court found a violation of Article 2 on account of the fact that the operation could have been controlled and organised without it being necessary to kill the suspects. It pointed out in particular that Article 2 “... not only safeguard[ed] the right to life but [also] [set] out the circumstances when the deprivation of life [might] be justified” and that it thus “rank[ed] as one of the most fundamental provisions in the Convention ... one which, in peacetime, admit[ted] of no derogation under Article 15” (see paragraph 147 of the judgment). |
644 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW 17. The Criminal Code of the Socialist Republic of Serbia 1977 ( Krivični zakon, published in Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. It read, in so far as relevant, as follows : Article 93 §§ 1 and 2 “1. A person who insults another shall be fined or punished with imprisonment of up to three months. 2. If the act described in paragraph 1 above is committed through the press ... the offender shall be fined or punished with imprisonment of up to six months.” Article 96 § 1 “No one shall be punished for insulting another person if this has been done in ... the discharge of journalistic duties ... if there was no intention to defame.” 18. The General Criminal Code 1977 ( Osnovni krivični zakon; published in Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/2001, and in Official Gazette of the Republic of Serbia no. 39/03) was in force from 1 July 1977 until 1 January 2006. It read, in so far as relevant, as follows : Article 41 “1. The court shall impose a punishment within the statutory limits for a particular offence, bearing in mind the purpose of punishment and taking into account all [ ... ] mitigating and aggravating circumstances, and in particular: the degree of criminal liability, the motives for which the criminal offence was committed, the degree of endangering or violating the protected good, circumstances in which the offence was committed, previous life of the perpetrator, his/her personal circumstances and his /her behaviour afterwards, as well as other circumstances relating to the perpetrator ’ s life.” Article 42 “ The court can impose a sanction below the statutory one: [ ... ] 2) when it finds that there are especially mitigating circumstances indicating that the purpose of sanctioning can be achieved even with a milder sanction.” Article 59 §§ 1 and 4 “1. A judicial warning can be given for those criminal offences for which one can be fined or imprisoned up to one year, when they were committed under such mitigating circumstances making them particularly minor. [ ... ] 4. When deciding whether to give a judicial warning the court shall, bearing in mind the purpose of the judicial warning, take into account in particular the personality of the perpetrator, his/her previous life, his/her behaviour after having committed the offence, the degree of criminal liability and other circumstances under which the offence was committed.” 19. A person who was issued a judicial warning is considered an offender and therefore he or she could be considered a repeated offender ( povratnik ) should he or she commit another criminal offence [11]. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 20. The applicant complained that her conviction for criminal insult violated 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 ... impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...” 21. The Government contested that argument. A. Admissibility 22. 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 23. The applicant maintained that her conviction for criminal insult because of the article she had written and published in Politika on 7 September 2003 had been a clear interference with her right of freedom of expression guaranteed by Article 10 of the Convention. She accepted that it was “in accordance with law” as required by Article 10 § 2 of the Convention, and that it had pursued the legitimate aim of protecting the rights of others. However, she maintained that her criminal conviction, although it had entailed a judicial warning, had been disproportionate under the circumstances of the case, in particular since it had caused her later dismissal from Politika, and represented a threat and warning to all Serbian journalists. 24. She also submitted that the article had been balanced and, in fact, “overwhelmingly favourable” towards Ms Kandić, and that it had been clear from the context that the impugned words had only been reporting of other people ’ s opinions about her and had been taken from another magazine. In this regard, she averred that Ms Kandić did not file a criminal action against the journalists of other magazines who had initially published the impugned words, notably Serbian Danas and the American Time, even though they published them without the quotation marks too. In this regard the applicant submitted that the journalists should not be penalised for failing to place quotation marks around words and ideas that come from others, and relied on Thoma v. Luxembourg, no. 38432/97, § 64, ECHR 2001 ‑ III. The applicant also maintained that Ms Kandić was a well-known political activist and, therefore, a public figure, and that the article had been written within the public debate about Ms Kandić and her role in the investigation and prosecution of high-ranking Serbian politicians and military officers for international crimes before the ICTY. ( b ) The Government 25. The Government did not dispute that the applicant ’ s conviction for insult had presented an interference with her right of freedom of expression. They further maintained that this interference had been in accordance with the law, specifically Article 93 of the Criminal Code, that it had pursued the legitimate aim of protecting the reputation of Ms Kandić, who was undoubtedly a well-known public figure, and that it had been proportionate to the aim pursued, considering that no prison sentence or fine had been imposed on the applicant. 26. They argued that the words “witch” and “prostitute”, for the use of which the applicant had been convicted, are of inherently insulting nature and that the context of the entire article clearly showed the applicant ’ s intent to insult Ms Kandić. The government accepted that these words had already been used by another journalist to describe attitudes towards Ms Kandić, but in an entirely different context. They further argued that all the positive aspects of Ms Kandić ’ s career referred to in the article had been maliciously and ironically presented. With regard to that, they maintained that the very title of the article had given a negative view of Ms Kandić, marking her as a servant of the ICTY, an institution which had been very unpopular in Serbian society; that positive characteristics of Ms Kandić had been put in quotation marks while abusive allegations had not been; that the significance of Ms Kandić ’ s accomplishments had been deliberately diminished by connecting them to extremely unpopular personalities in Serbia; and that the details about her family life, specifically the attitude of Ms Kandić ’ s son towards her work, had been taken out of context and misrepresented. 2. The Court ’ s assessment (a) Whether there has been interference 27. It is not disputed between the parties that the applicant ’ s conviction amounted to “interference by public authority” with her right to freedom of expression. Such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims. ( b ) “Prescribed by law” 28. The Court notes that the statutory basis for the applicant ’ s conviction was Article 93 § 2 of the Criminal Code. The Court holds that this provision was both adequately accessible and foreseeable, that is to say it was formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his or her conduct (see, among many other authorities, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 ). The Court, therefore, concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. (c ) Legitimate aim 29. The Court notes that it is not disputed between the parties that the interference pursued one of the aims enumerated in Article 10 § 2, namely the “protection of the reputation or rights of others”. (d ) “Necessary in a democratic society” (i) General principles 30. The relevant principles in this regard are set out in details in, for example, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-95, 7 February 2012. 31. In particular, the Court ’ s task, in exercising its supervisory jurisdiction, is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. 32. When examining the necessity of an interference in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007, and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011). 33. 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 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). The relevant criteria in this regard are: (a) the contribution made by the article to a debate of general interest; (b) how well known is the person concerned and what is the subject of the report; (c) the conduct of the person concerned prior to publication of the article; (d) method of obtaining the information and its veracity; (e) content, form and consequences of the publication; and (f) severity of the sanction imposed (see Axel Springer AG, cited above, §§ 89-95, 7 February 2012). 34. The Court also reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political figures or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures (see Minelli v. Switzerland (dec.), no. 14991/02, 14 June 2005, and Petrenco v. Moldova, no. 20928/05, § 55, 30 March 2010) in respect of whom limits of critical comment are wider, as they are inevitably and knowingly exposed to public scrutiny and must therefore display a particularly high degree of tolerance (see Ayhan Erdoğan v. Turkey, no. 39656/03, § 25, 13 January 2009, and Kuliś v. Poland, no. 15601/02, § 47, 18 March 2008). (ii) Application of these principles 35. The Court firstly notes that the article was written in the context of an ongoing and at the time heated public debate on the Republic of Serbia ’ s cooperation with the ICTY – a subject of great importance for Serbian society. At the time the article was published there was a high degree of animosity towards Ms Kandić from a large part of the Serbian public because of her efforts to secure the Serbian authorities ’ full cooperation with the ICTY and her activities related to the investigation of crimes committed by Serbian forces during the armed conflicts in the former Yugoslavia. The applicant ’ s statements were therefore made in the context of a debate on matters of public interest. 36. The Court further observes that the applicant is a journalist and in that capacity her task was to write an article about Ms Kandić, a well-known human rights activist and undeniably a public figure. In so doing, she wrote, inter alia, that Ms Kandić “ [had] been called a witch and a prostitute ”. The domestic court ’ s held that by failing to put these words in quotation marks she had tacitly endorsed them as her own and convicted her for insult. 37. While the impugned words are offensive the Court considers that it is clear from the formulation of the sentence that this is how Ms Kandić was perceived by others, not by the applicant herself. In addition, the applicant claimed before the domestic courts that the impugned words had been taken from another article written by another journalist and published in another magazine, which was indeed established as such in the domestic proceedings and acknowledged by the Government (see paragraphs 12 and 2 6 above). Therefore, it is evident, even without the quotation marks, that this was not the applicant ’ s personal opinion of Ms Kandić, but that she was merely transmitting how Ms Kandić was perceived by others. The Court has already held that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press ’ s role of providing information on current events, opinions and ideas (see Thoma, cited above, §§ 63-65). The Court does not consider that the sheer absence of quotation marks alone can be regarded as “particularly cogent reasons” capable of justifying the imposition of a penalty on the journalist (see, mutatis mutandis, Thoma, cited above, § 64 ). 38. Furthermore, the domestic courts failed to make any balancing exercise whatsoever between Ms Kandić ’ s reputation and the applicant ’ s freedom of expression and her duty, as a journalist, to impart information of general interest. They also made no reference to the overall context of the text and the circumstances under which it was written but their findings were rather limited to the fact that the impugned words were not put in the quotation marks. Such terse and undeveloped reasoning is, in the Court ’ s view, in itself problematic as it rendered any defence raised by the applicant devoid of any practical effect. 39. The Court cannot accept the Government ’ s argument that the applicant, through insinuations and diminution of facts, aimed to depict Ms Kandić in a negative light. The applicant made it clear in her article that the opinions on Ms Kandić were divided, offering both positive and negative aspects thereon. The article also reported that Ms Kandić had received many awards, some of them prestigious, as well as that she was campaigner for the truth on war crimes and a lonely voice of reason in Serbia, which was also written without the quotation marks, contrary to the Government ’ s submission. 40. In particular, the Court does not consider that the impugned words can be understood as a gratuitous personal attack on, or insult to Ms Kandić. They did not refer to her private or family life, but to how she was perceived professionally. Ms Kandić, as a human rights activist, was a public figure, as acknowledged by the Government. That being so, the Court considers that she inevitably and knowingly exposed herself to public scrutiny and should therefore have displayed a greater degree of tolerance than an ordinary private individual. 41. The Court finally reiterates that the nature and the severity of the sanction imposed are the factors to be taken into account when assessing the proportionality of the interference (see, for instance, Chauvy and Others v. France, no. 64915/01, § 78, ECHR 2004 - VI). In the present case, the domestic courts found that the applicant had committed a criminal offence of insult and issued against her a judicial warning, which could be considered an aggravating circumstance, should she commit another criminal offence (see paragraph 19 above). The Court cannot accept the Government ’ s argument that the applicant ’ s sentence was lenient. In the Court ’ s view, what matters is not that the applicant was issued a judicial warning “only”, but that she was convicted for an insult at all (see Lopes Gomes da Silva v. Portugal, no. 37698/97, § 36, ECHR 2000 - X). Irrespective of the severity of the penalty which is liable to be imposed, a recourse to the criminal prosecution of journalists for purported insults, with the attendant risk of a criminal conviction and a criminal penalty, for criticising a public figure in a manner which can be regarded as personally insulting, is likely to deter journalists from contributing to the public discussion of issues affecting the life of the community (see paragraph 19 above; see, also, Bodrožić and Vujin v. Serbia, no. 38 435/05, § 39, 23 June 2009, and Grebneva and Alisimchik v. Russia, no. 8918/05, § 65, 22 November 2016 (not yet final)). 42. The foregoing considerations are sufficient to enable the Court to conclude that the national authorities ’ reaction to the applicant ’ s article and in particular to the impugned words was disproportionate to the legitimate aim pursued, and was therefore not necessary in a democratic society, within the meaning of Article 10 § 2 of the Convention. 43. There has accordingly been a violation of Article 10 of the Convention. II. 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 20,000 euros (EUR) in total in respect of pecuniary and non-pecuniary damage, submitting that her conviction was a factor which led to her later discharge from Politika. 46. The Government contested the applicant ’ s claim as excessive and unfounded. They submitted, in particular, that the applicant had offered no evidence that she had been indeed discharged and even if that had been the case, that the said conviction was related to it in any way. 47. The Court does not discern any causal link between the violation found and the pecuniary damage alleged, in particular in view of the fact that the applicant failed to submit any proof that she had been indeed dismissed and, if so, that it was due to the conviction; it therefore rejects this claim. In respect of non-pecuniary damage the Court awards the applicant EUR 500. B. Costs and expenses 48. The applicant claimed the costs and expenses incurred before the domestic courts, which amount corresponded to EUR 386 at the time ( see paragraph 15 above). 49. The Government contested this claim. 50. 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 386 for costs and expenses in the domestic proceedings. 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 (freedom of expression) of the Convention, finding that the Serbian authorities’ reaction to the applicant’s article had been disproportionate. The Court considered in particular that it was evident, even without the quotation marks, that that sentence, written by another journalist and previously published in a different magazine, had not been the applicant’s personal opinion of Ms Kandić, but that she had merely been transmitting how Ms Kandić was perceived by others. Moreover, the domestic courts, limiting their reasoning to the lack of quotation marks, had completely failed to balance Ms Kandić’s right to reputation against the applicant’s freedom of expression and duty, as a journalist, to impart information of general interest. Novaya Gazeta and Milashina v. Russia |
425 | Challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW A. Asylum and humanitarian protection 27. Article 27 of the Constitution of 1991 provides as follows: “1. Aliens who reside in the country lawfully cannot be removed from it or delivered to another State against their will except under the conditions and in the manner provided for by law. 2. The Republic of Bulgaria shall grant asylum to aliens persecuted on account of their opinions or activities in support of internationally recognized rights and freedoms. 3. The conditions and procedure for granting asylum shall be established by law.” 28. Bulgaria acceded to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees on 12 May 1993, and they came into force in respect of it on 10 August 1993. 29. Section 9(1)(3) of the Asylum and Refugees Act of 2002 provides that individuals forced to leave or stay out of their country of origin because they faced a real risk of suffering death or ill ‑ treatment as a result of an internal or an international conflict are to be granted humanitarian protection. Section 9(2) makes it clear that the risk may stem from the authorities or from organisations against which the authorities are unable or unwilling to act. Section 9(5) provides that aliens cannot be granted humanitarian protection if in part of their country of origin there is no real risk of serious encroachments and there they can freely and lastingly enjoy effective protection. Under section 75(2), when the authorities determine an asylum application they have to take into account all relevant facts concerning the applicant’s personal situation, country of origin, or relations with other countries. The section also provides that when an applicant’s statement is not supported by evidence, it must be presumed to be true if the applicant has endeavoured to substantiate his or her application and has provided a good explanation for the lack of evidence. Section 58(7) requires the authorities processing asylum applications to obtain written comments by the State Agency for National Security. 30. Section 4(3) provides that individuals who have been granted protection under the Act or have entered Bulgaria to seek such protection cannot be returned to the territory of a country where their life or freedom are at risk on account of their race, religion, nationality, membership of a social group, their political opinions or views, or where they may face a risk of torture or other forms of cruel, inhuman or degrading treatment or punishment. However, section 4(4), which reflects a rule laid down in Article 33 § 2 of the 1951 Convention, provides that that benefit may not be claimed by aliens where there are grounds to regard them as a danger to national security. There is no reported case ‑ law under that provision. 31. Section 67(1) provides that expulsion orders are not enforced until the asylum proceedings have been concluded. By section 67(2), expulsion orders are revoked if the person concerned has been granted asylum or humanitarian protection. However, those two provisions are not applicable to, inter alia, aliens whose presence in the country may be regarded as dangerous for its national security (section 67(3)). B. Expulsion of aliens on national security grounds 32. A detailed description of the evolution of the law governing expulsion on national security grounds until 2009 can be found in paragraphs 18 ‑ 26 of the Court’s judgment in the case of C.G. and Others v. Bulgaria (no. 1365/07, 24 April 2008) and paragraphs 30 ‑ 36 of the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, 11 February 2010). The relevant provisions are contained in the Aliens Act 1998, as amended, and the regulations for its application. 33. Section 42(1) of the Act provides that an alien must be expelled when his or her presence in the country creates a serious threat to national security or public order. However, expulsion orders issued on national security grounds do no indicate the factual grounds for imposing the measure (section 46(3)). Under section 42(2), expulsion must be accompanied by withdrawal of the alien’s residence permit and the imposition of a ban on entering the country. 34. Expulsion orders issued on national security or public order grounds are immediately enforceable (section 44(4)(3)). However, if expulsion cannot be effected immediately or needs to be postponed for legal or technical reasons, the enforcement of the expulsion order may be suspended until the relevant obstacles have been overcome (section 44b(1)). 35. Expulsion orders may be challenged before the Supreme Administrative Court, whose judgment is final (section 46(2)). The lodging of an application for judicial review does not suspend the enforcement of the order under challenge (section 46(4)). 36. Article 166 § 2 of the Code of Administrative Procedure of 2006 provides that a court examining an application for judicial review may suspend the enforcement of the administrative decision under review, even if the administrative authority has directed that it should be immediately enforceable, if enforcement might cause the applicant harm that is considerable or hard to redress. Suspension requests are heard in open court and determined by means of a ruling that is amenable to appeal (Article 166 § 3). In a decision of 27 January 2009, the Supreme Administrative Court held that the enforcement of expulsion orders issued on national security grounds could not be suspended. If immediate enforcement was required by statute, it could be suspended by the court only if the same statute specifically allowed that, whereas section 46(4) of the Aliens Act 1998 expressly precluded that possibility (опр. № 1147 от 27 януари 2009 г. по адм. д. № 393/2009 г., ВАС, петчленен състав). 37. In an interpretative decision of 8 September 2009 (тълк. реш. № 5 от 8 септември 2009 г. по тълк. д. № 1/2009 г., ВАС, ОСК), the Plenary Meeting of the Supreme Administrative Court stated that Article 166 § 2 applied even where the immediate enforceability of administrative decisions was required by statute, provided that the law did not expressly preclude judicial review. The effect of that ruling on the possibility of suspending the enforcement of expulsion orders issued on national security grounds is unclear. 38. Section 44a of the Aliens Act 1998, added in 2001, provides that an alien whose expulsion has been ordered on national security or public order grounds cannot be expelled to a country where his or her life or freedom would be in danger, or where he or she may face a risk of persecution, torture, or inhuman or degrading treatment. In its early case ‑ law under that provision, the Supreme Administrative Court accepted that the State Refugees Agency could apply it when dealing with asylum requests (реш. № 5848 от 17 юни 2002 г. по адм. д. № 7864/2001 г., ВАС, ІІІ о.; реш. № 6048 от 24 юни 2002 г. по адм. д. № 1298/2002 г., ВАС, ІІІ о.; реш. № 7102 от 16 юли 2002 г. по адм. д. № 994/2002 г., ВАС, ІІІ о.; реш. № 9203 от 16 октомври 2002 г. по адм. д. № 4948/2002 г., ВАС, ІІІ о.; реш. № 10069 от 12 ноември 2002 г. по адм. д. № 996/2002 г., ВАС, ІІІ о.). However, in a judgment given in 2003 (реш. № 1400 от 18 февруари 2003 г. по адм. д. № 8154/2002 г., ВАС, ІІІ о.), the court held that the Agency had no power to rule on the application of section 44a and that this matter fell within the remit of the immigration authorities. In a 2007 judgment concerning an application for judicial review of a deportation order, the court examined, albeit briefly, the substance of a claim under that provision (реш. № 9636 от 15 октомври 2007 г. по адм. д. № 2222/2007 г., ВАС, ІІІ о.). However, in three 2008 judgments it held that the prohibition spelled out in section 44a does not concern the lawfulness of an expulsion order as such, but merely bars its enforcement. While in two of those cases the court went on to examine, albeit briefly, the substance of the claim that the person concerned was at risk (реш. № 6787 от 5 юни 2008 г. по адм. д. № 11461/2007 г., ВАС, ІІІ о.; реш. № 6788 от 5 юни 2008 г. по адм. д. № 11456/2007 г., ВАС, ІІІ о.), in the third it refused to do so, saying that solely the authorities in charge of executing an expulsion order have the power to apply section 44a (реш. № 7054 от 12 юни 2008 г. адм. д. № 10332/2007 г., ВАС, ІІІ о.). There are no reported cases concerning the application of section 44a by the immigration authorities. 39. If a deportee does not have a document allowing him or her to travel, the immigration authorities must provide one by contacting the embassy or the consulate of the State whose national he or she is. If that is not possible, such a document should be provided through the consular department of the Ministry of Foreign Affairs (regulation 52(1) of the regulations for the application of the Aliens Act 1998, issued in 2000, and superseded on 5 July 2011 by regulation 74(1) of the new regulations for the application of the Act). 40. Under regulation 71 of the new regulations for the application of the Aliens Act 1998 (superseding regulation 48 of the old regulations), in cases where expulsion orders are enforced through removal by air, the person concerned is to be escorted by immigration officers to his or her country of citizenship or another country of his or her choice to which he or she may be admitted. C. Detention pending deportation 41. A detailed history of the provisions of the Aliens Act 1998 governing detention of deportees may be found in paragraphs 37 ‑ 42 of Raza (cited above). The current regime is as follows. 42. Section 44(5) provides that if there are impediments to a deportee’s leaving Bulgaria or entering the destination country, he or she is placed under an obligation to report daily to his or her local police station. 43. Under section 44(6), it is possible to detain a deportee in a special detention facility if his or her identity is unknown, if he or she hampers the enforcement of the expulsion order, or if he or she presents a risk of absconding. Under section 44(10), deportees are placed in the detention facilities pursuant to special orders that have to specify the need for such placement and its legal grounds and be accompanied by copies of the orders under section 44(6). 44. Under section 44(8), which was enacted with a view to transposing Article 15 §§ 5 and 6 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals (see paragraphs 46 ‑ 48 below), detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee represents a national security or public order risk, detention may be prolonged for a further twelve months, to a maximum of eighteen months. 45. Section 46a provides for judicial review of the orders for the detention of deportees by the competent administrative courts. The application must be lodged within three days of their being issued, and does not stay their enforcement (subsection 1). The court must examine the application at a public hearing and rule, by means of a final judgment, not later than one month after the proceedings were instituted (subsection 2). In addition, every six months the head of any facility where deportees are being held must present to the court a list of all individuals who have been there for more than six months due to problems with their removal from the country (subsection 3). The court must then rule, on its own motion and by means of a final decision, on their continued detention or release (subsection 4). When the court sets aside the detention order, or orders a deportee’s release, he or she must be set free immediately (subsection 5). III. RELEVANT EUROPEAN UNION LAW 46. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals came into force on 13 January 2009 (Article 22). Under Article 20, the Member States of the European Union were required to transpose the bulk of its provisions in their national laws by 24 December 2009. 47. Recital 16 of the Directive reads as follows: “The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.” 48. Article 15 of the Directive, which governs detention for the purpose of removal, provides, in so far as relevant: “1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third ‑ country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. ... 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third ‑ country national concerned, or (b) delays in obtaining the necessary documentation from third countries.” 49. On 10 August 2009 the Sofia City Administrative Court made a reference for a preliminary ruling by the European Court of Justice (“ECJ”), enquiring about the construction to be put on various paragraphs of that Article. 50. In his opinion, Advocate General Mazák expressed the view, inter alia, that it was important to note that the periods laid down in Article 15 §§ 5 and 6 of the Directive defined only the absolute and outside limits of the duration of detention, that it was clear from their wording that any detention prior to removal must be for as short a period as possible and may be maintained only as long as removal arrangements are in progress and executed with due diligence, and that detention must be brought to an end when the conditions for detention no longer exist or when there is no longer any reasonable prospect of removal. He went on to say that those maximum periods of detention were part of a body of rules intended to ensure that detention is proportionate, in other words that its duration is for as short a period as possible and, in any event, not for longer than the six months or the eighteen months provided for. 51. In its judgment of 30 November 2009 ( Saïd Shamilovich Kadzoev v. Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti, case C ‑ 357/09), the ECJ noted, inter alia, that the objective of Article 15 §§ 5 and 6 was to guarantee in any event that detention for the purpose of removal does not exceed eighteen months. It went on to rule that those provisions must be interpreted as meaning that the period during which enforcement of the deportation order has been suspended because the person concerned has challenged it by way of judicial review is to be taken into account in calculating the period of detention for the purpose of removal, where the person concerned remains in detention during that procedure. The court further ruled that Article 15 § 4 must be interpreted as meaning that only a real prospect that removal can be carried out successfully, having regard to the periods laid down in Article 15 §§ 5 and 6, corresponds to a reasonable prospect of removal, and that such a reasonable prospect does not exist where it appears unlikely that the person concerned will be admitted to a third country, having regard to those periods. IV. RELEVANT COUNTRY INFORMATION A. Background 52. There are twelve “official” Palestinian refugee camps in Lebanon: two in the north of the country, near Tripoli, five in the centre (four near Beirut and one near Baalbek), and five in the south (two near Saida and three near Tyre). In addition, there are dozens of informal gatherings, sometimes referred to as “unofficial camps”, spread throughout the country. The majority of Palestinian refugees in Lebanon are those displaced during the Arab ‑ Israeli war of 1948 and their descendants. More Palestinians arrived in 1967 after the Six ‑ Day War, and in the 1970s after they were expelled from Jordan. The refugees fall into three categories: those registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“the UNRWA”) (“registered refugees”), who are also registered with the Lebanese authorities; refugees registered with the Lebanese authorities but not with the UNRWA (“non-registered refugees”); and refugees registered neither with the UNRWA nor with the Lebanese authorities (“non ‑ ID refugees”). According to the UNRWA, on 30 June 2010 there were 427,057 registered refugees in Lebanon; 226,767, or 53.1% of them, were living in the “official” camps. However, according to a report by the International Crisis Group (see paragraphs 76 and 77 below), many observers believe that the numbers cited by the UNRWA are inflated and fail to take account of the impact of the 1975 ‑ 90 Lebanese Civil War and subsequent waves of Palestinian departures; according to their estimates, in 2009 the refugees were between 200,000 and 250,000. There are an estimated 10,000 to 35,000 non ‑ registered refugees and 3,000 to 5,000 non ‑ ID refugees. By law, Palestinian refugees in Lebanon are considered foreigners and are subject to various restrictions (for details, see Amnesty International: Exiled and suffering: Palestinian refugees in Lebanon, October 2007). 53. Ain al ‑ Hilweh (other transliterations from Arabic include Ain al ‑ Helweh, Ein el ‑ Hilweh, Ein al ‑ Helweh, and Ayn Hilwa) is one of the two “official” camps located near Saida (Sidon). It was established at the outskirts of the town in 1948 to accommodate refugees from northern Palestine. After displacements resulting from the Lebanese Civil War, it became the biggest refugee camp there, in terms of both population and area. According to the UNRWA, it contains more than 47,500 registered refugees; according to the above ‑ mentioned International Crisis Group report (see paragraphs 76 and 77 below), the number is closer to 70,000. It covers an area of about two square kilometres, and is one of the most densely populated camps. Like the other Palestinian refugee camps in Lebanon, it is not controlled by the Lebanese authorities, but by local Palestinian factions. The Lebanese Army has checkpoints at the entrances to the camp. 54. In an article published on 7 January 2010 following a visit by a correspondent to Ain al ‑ Hilweh, the Hong Kong ‑ based newspaper Asia Times Online described the camp as divided into two sections, Upper and Lower streets, which led to a network of arterial alleyways. Lower Street was regarded as the bastion of the radical Islamists in the camp. According to a local figure quoted in the article, there were three broad coalitions inside the camp: the Tahalof (Cooperative), the Palestinian Liberation Organization, and Islamic factions. The Tahalof consisted of seven factions, including the Islamic Resistance Movement (Hamas) and Palestinian Islamic Jihad. The Palestinian Liberation Organization faction was made up of five groups and was dominated by Fatah. The Islamic faction comprised three groups: Asbat al ‑ Ansar, Harakat Mujahideen Islamiyah, and Ansar Allah. The article went on to mention inter ‑ Fatah conflicts inside the camp, saying that they centred on veteran Fatah leader Mounir Maqdah and his rival Mahmoud Abdul ‑ Hameed Al ‑ Issa. Maqdah was described as being regarded as a renegade by some Fatah leaders, partly because of his close links to Palestinian Islamists. However, a minority faction in Fatah viewed his links to Islamists as a vital asset. B. United Kingdom Government Reports 55. The United Kingdom Home Office Country of Origin Information Report on Lebanon, issued in July 2006, says the following about Ain al ‑ Hilweh: “6.142 ... ‘There are many displaced Palestine refugee families in this camp who were forced to flee from Tripoli and other areas of the country during the hostilities in the eighties. Ein el ‑ Hilweh has endured much violence, particularly between 1982 ‑ 1991, which resulted in a high number of casualties and near total destruction of the camp. Shelters are small and very close to each other. Some still have zinc sheet roofing. UNRWA constructed a multi-storey housing complex in 1993 ‑ 1994 to accommodate 118 displaced families mainly from Nabatieh camp, which was destroyed during the [sic] 1973 by Israeli military action. A number of displaced refugees continue to live on the edge of the camp in extremely poor conditions.’ ... ... 6.145 A 2003 paper by Are Knudsen, ‘Islamism in the Diaspora: Palestinian refugees in Lebanon’, states that ‘Ayn Hilwa, the most conflict ‑ ridden camp in the country is surrounded by barbed wire and legal entry is only possible through a few checkpoints guarded by the Lebanese army, with secondary checkpoints manned by armed guards representing the popular committees.’ 6.146 According to Knudsen’s 2003 paper, Ein el ‑ Hilweh’s political actors can be divided into three groups: loyalist, Islamist and oppositional. Knudsen detailed the different groups as follows: ‘The ‘loyalists’ are secular groups formed around PLO’s largest faction Fateh and share its secular ideology and political programme. The ‘Islamists’ are a heterogeneous mix of Palestinian and Lebanese Islamists with divergent ideologies and political agendas. While some remain ideologically opposed to Fateh and its policies vis ‑ à ‑ vis Israel (Hamas, Islamic Jihad), others seek to break Fateh’s political hegemony in Lebanese refugee camps, if necessary by violent means (Osbat al ‑ Ansar). The ‘oppositional’ camp is likewise a heterogeneous coalition of secular parties, many of them breakaway factions from Fateh itself, which find a common ground in their difference with Fateh and the loyalists over their policy of appeasement vis-à-vis Israel. In the camps there is also a diverse range of committees and groups whose main function is not political but bureaucratic. Still, control of the popular committees and trade union groups does provide political gains and leadership of them is therefore coveted and sometimes turns violent.’ 6.147 The same source also contained a table listing the various political actors in Ein el ‑ Hilweh, which categorised them into the ‘loyalist’, ‘Islamist’ or ‘oppositional’ groups: [Loyalist, which includes Fatah; Islamist, which includes the Ansar Group; and Oppositional]. 6.148 A June 2003 Middle East Intelligence Bulletin (MEIB) article recounted, in detail, the various groups and power struggles within Ein el ‑ Hilweh over the last two decades. The article states that ‘Ain al ‑ Hilweh, the largest Palestinian refugee camp in [then] Syrian ‑ occupied Lebanon, has been linked to virtually every case of al ‑ Qaeda activity in Lebanon, while renegade terrorists residing in the camp have been tied to the global terror network’s operations in Jordan, Turkey and elsewhere in the region.’ The article noted that, despite the status of Ein el ‑ Hilweh as a ‘zone of unlaw’ serving Syrian interests, Damascus did not directly control most operatives within the camp and that the most radical groups were in fact anti ‑ Syrian. 6.149 The article also reported that Ein el ‑ Hilweh was the stronghold of the Fatah movement during the late 1980s, that the Abu Nidal Organisation [ANO] had been defeated by Fatah in a bloody three ‑ day war for control of the camp in September 1990 and also recounted the rebellion of Col. Mounir Maqdah against Yasser Arafat’s command. With Iranian finances and Hezbollah logistical support, he began training his own militia and ‘By 1995, Maqdah’s dissident faction [the Black September 13 Brigade], backed by pro ‑ Syrian leftist groups, had established dominance over mainstream Fatah forces in the camp, in part because many of Arafat’s most loyal commanders had been transferred to the West Bank and Gaza.’ MEIB noted that ‘Hamas and Islamic Jihad, which had only a limited presence in the camp until the mid ‑ 1990s, coordinated closely with Maqdah and were allowed to distribute Iranian funds to expand their bases of support.’ 6.150 Esbat al ‑ Ansar, the League of Partisans, has also had a presence in Ein el ‑ Hilweh for over two decades and, ‘In the [sic] late 1998, Esbat al ‑ Ansar began receiving significant funding from al ‑ Qaeda, thoroughly transforming both its infrastructure and its goals. The group’s military wing, which now paid recruits monthly salaries for the first time, grew to a force of 150 ‑ 300 fighters, dozens of whom were sent to bin Laden’s training camps in Afghanistan.’ Due to its increased financial resources, the group was able to buy weapons and also move more freely, as members could now pay the bribes needed to pass through Lebanese security checkpoints. The latter benefit meant that ‘It quickly established close links with radical Islamists in the northern port of Tripoli and the nearby Badawi and Nahr el ‑ Bared refugee camps.’ 6.151 Syrian concerns over the rise of Islamist groups in the camp resulted in the Syrian authorities allowing Fatah to reassert its authority in the Ein al ‑ Hilweh, which included Mounir Maqdah who had rejoined Fatah in late 1998, primarily by pouring Palestinian Authority (PA) funds into the camp. However, with the in absentia conviction of Fatah’s leader in Lebanon, Sultan Abu al ‑ Aynayn [based in Rashidieh camp], of forming an armed gang and the subsequent arrest of three senior Fatah officials, Syrian support of Fatah’s authority in Ein el-Hilweh was again curtailed, seemingly in favour of Esbat al ‑ Ansar. 6.152 MEIB also recounted the presence of other groups in Ein el ‑ Hilweh, such as Jamal Suleiman’s Fatah’s Martyrs’ Battalion; the Popular Front for the Liberation of Palestine (PFLP); the 10 to 20 fighters who constituted the remnants of the Dinniyeh Group – initially a 200 ‑ 300 strong group of Islamic militants who, in January 2000, had failed in an attempt to establish an Islamic ‘mini ‑ state’ in north Lebanon – who fled to Ein el ‑ Hilweh following the defeat of the group by 13,000 Lebanese troops; and the Esbat al ‑ Ansar breakaway group – Esbat al ‑ Nour – which was led by the eldest son of the original group’s founder: ‘[Abdullah] Shreidi attracted only a few dozen of the [Esbat al-Ansar] movement’s fighters, as well as the Dinniyeh militants for whom he had provided shelter.’ The article states that ‘Another small, but important al ‑ Qaeda affiliate is Al ‑ Haraka al ‑ Islamiya al ‑ Mujahida (The Islamic Struggle Movement), led by Sheikh Jamal Khattab, the imam of Al ‑ Nour Mosque in the Safsaf neighbourhood of Ain al ‑ Hilweh.’ 6.153 MEIB detailed the fluctuating nature of power within the camp, reporting on the various outside influences of the Syrian and Iranian regimes, Hezbollah and Al ‑ Qaeda, and also the political and physical conflicts between the groups inside Ein el ‑ Hilweh.” 56. The United Kingdom Border and Immigration Agency periodically issues Operational Guidance Notes (“OGNs”) which evaluate the general, political and human rights situation in a given country and provide guidance on the nature and handling of the most common types of asylum or subsidiary protection claims by persons fleeing that country. 57. The latest OGN on Lebanon was issued on 10 June 2009. It noted that Palestinian refugees were not able to obtain Lebanese citizenship and were not nationals of any other country. Thousands of Palestinians did not have any form of identification and were not receiving assistance from UNRWA. Some 20,000 Palestinians were believed to have been naturalised as Lebanese. However, it appeared that the status of some of the naturalised Palestinians was not secure as there were reports that their Lebanese nationality could be annulled. 58. The OGN referred to two immigration tribunal rulings ( KK IH HE (Palestinians – Lebanon – camps) Palestine CG [2004] UKIAT 00293, and MM and FH (Stateless Palestinians, KK, IH, HE reaffirmed) Lebanon CG [2008] UKAIT 00014 (4 March 2008)), which found that the general treatment of Palestinians by the Lebanese authorities and the conditions in the Palestinian refugee camps in Lebanon were not such as to reach the threshold of severity that triggers the application of Article 3 of the Convention. On that basis, the OGN concluded that while the situation for Palestinians in Lebanon was poor with some differential treatment due to statelessness, conditions in the camps did not reach the threshold to establish either persecution or a breach of human rights. 59. With regard to claims based on fear of the Lebanese authorities due to membership of a Palestinian group, the OGN noted that the Palestinian political scene in Lebanon consisted of three broad categories. The first was members of the Palestinian Liberation Organisation, including Fatah, the Popular Front for the Liberation of Palestine, the Democratic Front for the Liberation of Palestine and several other less significant factions. The second category consisted of the Alliance of Palestinian Forces, known as Tahaluf, founded in 1993 in opposition to the Oslo peace accords. Its members did not recognise Israel and advocated armed struggle. It had regrouped into eight factions which enjoyed close relations with Syria: Hamas, Islamic Jihad, the Popular Front for the Liberation of Palestine ‑ General Command (PFLP ‑ GC), Fatah al ‑ Intifada, al ‑ Saiqa, the Palestinian Popular Struggle Front, the Palestinian Liberation Front, and the Palestinian Revolutionary Communist Party. The third category comprised Jihadi ‑ leaning Islamist forces, an eclectic assortment of movements that espoused the use of violence rather than a coherent or organised group. It included Usbat al ‑ Ansar, Hizb al ‑ Haraka al ‑ Islamiyya al ‑ Muhahida, and Ansar Allah, which engaged with the Lebanese State and Army. More extreme movements rejected any dealing with Lebanese institutions or Fatah and included Jund al ‑ Sham, Usbat al ‑ Nour, and other less significant groups. 60. According to the OGN, Fatah generally boasted a strong, often dominant, presence in the camps in south Lebanon, including Ain al ‑ Hilweh. However, the camp was “a microcosm of the Palestinian political universe”, with all PLO, Tahaluf and Jihadi factions being represented and perpetually competing for influence and power, which resulted in frequent clashes. Palestinian militant groups continued to capitalise on the lack of government control within the camps. Some of those groups, such as Usbat al ‑ Ansar and Jund al ‑ Sham, had been able to find safe haven within the camps, most notably in Ain al ‑ Hilweh. In March 2008 heavy clashes had erupted in the camp between Jund al ‑ Sham militants and fighters of Fatah. They had exchanged rocket fire for four hours until a ceasefire had been agreed following mediation by another Islamist group. A Fatah leader had said at least four people had been wounded in the clashes. The Jund al ‑ Sham fighters would leave the camp and Fatah security agents would take control. The Lebanese army had blocked the entrance to the camp while allowing civilians to leave. A Palestinian official had said that the militants of Jund al-Sham had been angered by Fatah’s seizure of a commander of the group and his handover to the Lebanese army. The captive had been suspected of links to militant groups outside Lebanon. On 15 September 2008 a Jund al ‑ Sham member had been killed in further clashes between the group and Fatah. Reports had said the Lebanese army had taken up positions at the entrance of the camp just metres away from the fighting. 61. On the basis of that information, the OGN concluded the following: “In assessing any risk from the Lebanese authorities to those who claim to have been a member of an armed Palestinian group, the type of group and level of involvement will need to be considered. Consideration should also be given to the reasons for leaving a refugee camp and how the claimant was able to avoid the authorities when leaving Lebanon. In general, the Lebanese authorities do not enter Palestinian camps. Palestinian groups operate autonomously in refugee camps and in the majority of cases would be able to offer the protection needed from within these camps. Claimants who have not been directly involved in criminal or militant acts and who support more moderate groups, such as Fatah, are unlikely to have come to the attention of or be of interest to the Lebanese authorities. A grant of asylum or Humanitarian Protection would not usually be appropriate in such cases. However, if it is accepted that the claimant has been involved in armed groups of particular interest to the Lebanese authorities, such as the Abu Nidal Organisation, Asbat Al ‑ Ansar/Al Nur and Jund al ‑ Sham, or can otherwise demonstrate adverse interest and inability to access protection, it may be appropriate to grant asylum. Case owners should note that members of armed Palestinian groups have been responsible for numerous serious human rights abuses. If it is accepted that a claimant was an active operational member or combatant of an armed Palestinian group and the evidence suggests he/she has been involved in such actions, then case owners should consider whether one of the Exclusion clauses is applicable. Case owners should refer such cases to a Senior Caseworker in the first instance.” 62. With regard to claims based on fear of Islamic Palestinian Groups in the Ain al ‑ Hilweh, such as Usbat al-Ansar, Jund al-Sham, or the Fatah Revolutionary Council (also known as Abu Nidal Organisation), the OGN observed that although Fatah’s control was weak, claimants could seek their protection. It went on to note that the refugee camps were outside the government’s control, which meant that in those areas the Lebanese authorities would not be able to offer sufficiency of protection from extremist Palestinian groups. However, the authorities would be able to offer protection outside the camps. A further option was internal relocation. Since the threat was localised in specific camps, relocation to another camp or elsewhere in Lebanon was feasible and not unduly harsh. In that respect, the OGN referred to two immigration tribunal rulings: BS (Palestinian – Lebanon – relocation) Lebanon [2005] UKIAT 00004, and MA (Lebanon/Palestine, fear of Fatah, relocation) Palestine [2004] UKIAT 00112, and reached the following conclusion: “Within the [A]in [a]l ‑ Hilweh camp there have been in the past, and continue to be, various factions of extremist Palestinian groups struggling for power leading to occasional outbreaks of violence. In individual cases consideration needs to be given as to why the claimant would be of interest to the extremist Palestinian groups and the level of that interest. The Tribunal have found that it is not unduly harsh to relocate between camps in Lebanon. Many of the most extreme groups have limited support in Lebanon, especially outside the refugee camps. It is therefore considered that a claimant could find safety in another camp or elsewhere in Lebanon where the specific extremist Palestinian group he fears does not have a significant presence. Protection may also be available to the claimant from other Palestinian groups, particularly Fatah. Therefore a grant of asylum or Humanitarian Protection would not usually be appropriate for claims on this basis.” 63. With regard to claims based on fear of Palestinian groups on account of collaboration with their enemies, the OGN observed that, since the Government of Lebanon did not exercise control over the Palestinian refugee camps, armed groups could operate relatively freely there. Therefore, sufficiency of protection would not generally be available from the Lebanese authorities inside the camps. For those who feared persecution at the hands of a rival group, protection inside the refugee camp could be available from another group. There was no evidence to show that the Lebanese authorities would be unwilling or unable to offer protection outside the refugee camps to those fearing Palestinian groups. Another option was internal relocation. The law provided for freedom of movement, and the Lebanese authorities generally respected that right, with some limitations. They maintained security checkpoints, primarily in military and other restricted areas. There were few police checkpoints on main roads or in populated areas. The security services used those checkpoints to conduct warrantless searches for smuggled goods, weapons, narcotics, and subversive literature. Few Palestinian groups had influence outside the refugee camps and relocation to another camp or elsewhere in Lebanon was not likely to be unduly harsh. In that respect, the OGN referred to the above ‑ mentioned ruling in BS (Palestinian – Lebanon – relocation) Lebanon [2005] UKIAT 00004, and to the ruling in WD (Lebanon – Palestinian – ANO – risk) Lebanon CG [2008] UKAIT 00047, and concluded as follows: “Consideration needs to be given to the level of involvement as a collaborator, who the claimant worked for, what information the claimant was in a position to give and their position in that group. In the majority of cases within the refugee camps the Lebanese authorities would not be able to provide sufficiency of protection. However, few Palestinian groups have influence outside the refugee camps and the Lebanese authorities would be in a position to offer sufficiency of protection in the remainder of the country. However if the claimant is a known Israeli collaborator the Lebanese authorities might not offer protection. Internal relocation to another camp away from a particular Palestinian group feared would not be unduly harsh. Therefore in the majority of cases a grant of asylum or [h]umanitarian [p]rotection would not usually be appropriate.” C. United States’ Government Reports 1. Department of State Country Report on Human Rights Practices, Lebanon, 2010 64. This report, issued on 8 April 2011, noted, inter alia, the following: “The law does not specifically prohibit torture or cruel, inhuman, or degrading treatment or punishment, and there were reports government officials employed such practices. According to human rights groups – including Amnesty International (AI), the Lebanese Association for Education and Training (ALEF), and HRW – torture was common, and security forces abused detainees. Human rights organizations reported torture occurred in certain police stations, the Ministry of Defense (MOD), and the ISF’s intelligence branch and Drug Repression Bureau detention facilities in Beirut and Zahle. ... Former prisoners, detainees, and reputable local human rights groups reported the methods of torture and abuse applied included hanging by the wrists tied behind the back, violent beatings, blows to the soles of the feet, electric shocks, sexual abuse, immersion in cold water, extended periods of sleep deprivation, being forced to stand for extended periods, threats of violence against relatives, deprivation of clothing, withholding of food, being deprived of toilet facilities, and continuous blindfolding. ... The law provides for freedom of movement within the country, foreign travel, emigration, and repatriation, and the government generally respected these rights for citizens but placed limitations on the rights of Palestinian refugees. The government cooperated with the UN Relief and Works Agency for Palestinian Refugees (UNRWA), the UNHCR, and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, asylum seekers, and other persons of concern. The government maintained security checkpoints, primarily in military and other restricted areas. On main roads and in populated areas, security services used a few police checkpoints to conduct warrantless searches for smuggled goods, weapons, narcotics, and subversive literature. Government forces were unable to enforce the law in the predominantly Hizballah ‑ controlled Beirut southern suburbs and did not typically enter Palestinian refugee camps. According to UNRWA, Palestinian refugees registered with the MOI’s Directorate of Political and Refugee Affairs (DPRA) may travel from one area of the country to another. However, the DPRA must approve transfer of registration for refugees who reside in camps. UNRWA stated the DPRA generally approved such transfers. ... ... The amount of land allocated to official refugee camps in the country has only marginally changed since 1948, despite a four ‑ fold increase in the registered refugee population. Consequently, most Palestinian refugees lived in overpopulated camps subject to repeated heavy damage during multiple conflicts. Poverty, drug addiction, prostitution, and crime reportedly prevailed in the camps, although reliable statistics were not available. In accordance with a 1969 agreement with the PLO, PLO security committees, not the government, provide security for refugees in the camps.” 2. Department of State Country Reports on Terrorism 2009 65. These reports, issued on 5 August 2010, contained the following observations in respect of Lebanon: “While the threat of terrorist activity kept Lebanese security agencies on high alert throughout the year, 2009 was characterized by increased governmental efforts to disrupt suspected terrorist cells before they could act. The Lebanese Armed Forces (LAF), in particular, were credited with capturing wanted terrorist fugitives and containing sectarian violence. Several designated terrorist organizations remained active in Lebanon. HAMAS, The Popular Front for the Liberation of Palestine (PFLP), the Popular Front for the Liberation of Palestine ‑ General Command (PFLP ‑ GC), Fatah al ‑ Islam (FAI), al ‑ Qa’ida (AQ), Jund al ‑ Sham, the Ziyad al ‑ Jarrah Battalions, and several other splinter groups all operated within Lebanon’s borders. Hizballah, which is a legal entity and a major political party, is represented in Lebanon’s cabinet and parliament. In 2009, terrorist violence and counterterrorist activity included the following incidents: ... – In July, the Lebanese Army arrested Syrian citizen Mounjed al ‑ Fahham at Beirut International Airport. Investigations revealed that al ‑ Fahham intended to smuggle out of Lebanon FAI spiritual leader Oussama Chehabi, known as Abou Zahra; FAI leader Abdel Rahman Awad; and Abdel Ghani Jawhar, wanted for 2008 attacks against LAF soldiers in Tripoli. – On August 19, an LAF intelligence unit arrested Lebanese citizen Wissam Tahbish, reported to be a key member of Jund al ‑ Sham. Tahbish was the primary suspect in the 1999 assassination of four Lebanese judges in Sidon. ... LAF commanders stressed that it has strengthened its surveillance capabilities over the 12 Palestinian camps and four Syrian-backed Palestinian military bases within its borders. Nevertheless, a porous border with Syria, weak internal camp security, and LAF reluctance to enter the Palestinian refugee camps all contributed to fears of another confrontation with an armed group, similar to the 2007 Nahr al ‑ Barid conflict. The most widely predicted venue for such a clash is in Lebanon’s most populous refugee camp, Ain al-Hilweh, near the southern city of Sidon. The camp is well known for HAMAS ‑ Fatah violence and as a suspected safe haven for fugitive FAI terrorists.” D. United Nations Reports 66. In his tenth semi ‑ annual report on the implementation of Security Council resolution 1559 (2004), issued on 21 October 2009 (S/2009/542), the Secretary ‑ General of the United Nations said, inter alia, the following: “33. While the situation in most of the 12 Palestinian refugee camps remains relatively stable, the threat of internal violence that could potentially spill over into surrounding areas exists in a number of camps. Indeed, some of the refugee camps, in particular Ain el ‑ Hilweh, continue to provide safe haven for those who seek to escape the authority of the State. In Ain el ‑ Hilweh camp, several incidents were registered during the reporting period. On 16 June, two unidentified masked men opened fire at a Fatah officer, Ahmad Abul Kol. He was shot dead, while another individual was injured. The incident was followed by continuous shooting in different areas inside the camp over several days. Other shooting incidents were reported over the last months. 34. Notwithstanding these incidents, closer cooperation between Palestinian camp authorities and Lebanese authorities improved camp security during the reporting period. More needs to be done to contain potential tension in the camps. 35. The conditions of hardship inside Palestinian refugee camps are strengthening radical groups and therefore living conditions of Palestinian refugees in Lebanon should be improved, in the best interest of the wider security situation in the country. ... ” 67. In his eleventh report on the implementation of Security Council resolution 1701 (2006), issued on 2 November 2009 (S/2009/566), the Secretary ‑ General of the United Nations said, inter alia, the following: “42. The security situation in the UNRWA-administered Palestinian refugee camps remained relatively calm, with only minor incidents during the reporting period. This positive development is largely due to increased cooperation and coordination between Palestinian camp authorities and Lebanese security agencies. I remain, however, concerned about reports of threats to the United Nations posed by militant extremist groups present in Lebanon. Some of those elements have sought shelter in Palestinian refugee camps, including Ain el ‑ Hilweh camp at Saida, to which Lebanese security agencies do not have access.” 68. In his twelfth report on the implementation of Security Council resolution 1701 (2006), issued on 26 February 2010 (S/2010/105), the Secretary ‑ General of the United Nations said, inter alia, the following: “38. On 15 February clashes between members of Fatah and members of radical Islamist movements broke out in the Palestinian refugee camp of Ain el ‑ Hilweh, near Saida. One person was killed as a result of the fighting before calm was restored to the camp. This incident disrupted an otherwise generally calm situation in the camps. Lebanese authorities have continued to welcome cooperation arrangements with Palestinian authorities on security issues in the camps. ....” 69. In his eleventh semi ‑ annual report on the implementation of Security Council resolution 1559 (2004), issued on 19 April 2010 (S/2010/193), the Secretary ‑ General of the United Nations said, inter alia, the following: “34. The situation inside the Palestinian refugee camps remains a source of concern, although it has been generally calm over the reporting period. On a few occasions, security incidents were reported, in particular on 15 February, when fighting between members of Fatah and a radical Islamist movement in Ain al ‑ Hilweh resulted in one fatality. The refugee camps continue to provide a safe haven for those who seek to escape the State’s authority, such as militants, extremists, criminals and arms smugglers, in addition to Palestinian armed factions across all party lines. Internal violence could potentially spill over into surrounding areas. While security coordination and cooperation between the Lebanese security agencies and the Palestinian factions have improved, Lebanese authorities do not maintain a permanent presence inside the camps ... More needs to be done to contain potential tension in the camps. ...” 70. In his twelfth semi ‑ annual report on the implementation of Security Council resolution 1559 (2004), issued on 18 October 2010 (S/2010/538), the Secretary ‑ General of the United Nations said, inter alia, the following: “28. While the situation in most of the 12 Palestinian refugee camps remains relatively stable, the threat that internal violence could spill over into surrounding areas still exists in a number of camps. Some of the camps continue to provide safe haven for those who seek to escape the authority of the State. During the reporting period, security sources registered several incidents in and around refugee camps involving the use of weapons. 29. Notwithstanding those incidents, closer cooperation between Palestinian camp authorities and Lebanese authorities has improved camp security. Meanwhile, Lebanese authorities do not maintain a permanent presence inside the camps ... More will need to be done to contain potential tension in the camps. 30. The situation of Palestinian refugees living in Lebanon remains, by and large, dire. For many years, the United Nations has urged the Government to improve the conditions in which Palestinian refugees live in Lebanon, without prejudice to the eventual resolution of the Palestinian refugee question in the context of a comprehensive peace agreement in the region, in particular given the detrimental effects of dismal living conditions on the wider security situation. ....” 71. In his Fourteenth report on the implementation of Security Council resolution 1701 (2006), issued on 1 November 2010 (S/2010/565), the Secretary ‑ General of the United Nations said, inter alia, the following: “39. The security situation inside the Palestinian refugee camps has been generally calm during the reporting period, with only a few incidents reported, thanks to increased cooperation on security issues between Palestinian factions and Lebanese security agencies. On 7 September, tensions rose in Ain al ‑ Hilweh camp when a group believed to have sympathies for Al ‑ Qaida publicly threatened to assassinate a local Fatah leader responsible for security cooperation with Lebanese authorities.” 72. In his fifteenth report on the implementation of Security Council resolution 1701 (2006), issued on 28 February 2011 (S/2011/91), the Secretary ‑ General of the United Nations said, inter alia, the following: “33. Lebanese authorities point to the good cooperation existing between the Lebanese Armed Forces and Palestinian security officials in the 12 official Palestinian refugee camps in the country. Only one major incident was reported in the Palestinian refugee camps in Lebanon during the reporting period. This involved the assassination in the Ain el ‑ Hilweh camp on 25 December 2010 of Ghandi Sahmarani, a member of the disbanded Jund al ‑ Sham group. Following his murder, a bomb was planted in a building that allegedly belongs to Fatah al ‑ Islam in Ain el ‑ Hilweh; the bomb caused only material damage. Lebanese authorities attributed the assassination to in-fighting between rival groups in Ain el ‑ Hilweh camp.” 73. In his thirteenth semi ‑ annual report on the implementation of Security Council resolution 1559 (2004), issued on 19 April 2011 (S/2011/258), the Secretary ‑ General of the United Nations said, inter alia, the following: “38. The situation in most of the 12 Palestinian refugee camps in Lebanon has remained relatively stable, although a few shooting incidents and explosions have been registered in some of the camps, in particular in Ain al ‑ Hilweh, where, as recently as 31 March, clashes erupted between rival groups inside the camp. The threat of internal violence that could potentially spill over into surrounding areas still exists in a number of camps, as some of them continue to provide safe haven for those who seek to escape the authority of the State. 39. Notwithstanding those incidents, Lebanese authorities have acknowledged the existence of good cooperation between the Lebanese Armed Forces and Palestinian security officials in the camps. However, Lebanese authorities do not maintain a permanent presence inside the camps, despite the fact that the Cairo agreement of 1969 — which permitted the presence of Palestinian armed forces in the refugee camps — was annulled by the Lebanese Parliament in 1987. More will need to be done to contain potential tension in the camps. 40. The situation of Palestinian refugees living in Lebanon remains, by and large, dire. The United Nations continues to urge the Lebanese authorities to improve the conditions in which Palestinian refugees live in Lebanon, without prejudice to the eventual resolution of the Palestinian refugee question in the context of a comprehensive peace agreement in the region, in particular given the detrimental effects of dismal living conditions on the wider security situation.” E. Non ‑ Governmental Organisations’ Reports 1. Amnesty International 74. In its 2011 report on Lebanon, Amnesty International noted, inter alia, the following: “Palestinian refugees continued to face discrimination, which impeded their access to work, health, education and adequate housing. At least 23 recognized Iraqi refugees were reported to have been deported while scores of other refugees and asylum ‑ seekers were detained in what may amount to arbitrary detention. At least 19 people were convicted following unfair trials of collaboration with or spying for Israel; 12 of them were reported to have been sentenced to death. Reports continued of torture in detention. ... ... More than 120 individuals suspected of involvement with the Fatah al ‑ Islam armed group, detained without charge since 2007, continued to await trial before the Judicial Council. Most were allegedly tortured. ... ... – The trial began of Maher Sukkar, a Palestinian refugee, and 10 others before a military court on security ‑ related offences including ‘forming an armed gang to commit crimes against people and property’. No investigation was carried out into his allegation that he ‘confessed’ under torture in April while held incommunicado. ... ... Reports continued of torture and other ill ‑ treatment of detainees and few steps were taken to improve the situation. However, the authorities did permit a visit of the UN Subcommittee on Prevention of Torture to the country in May [the report from that visit, which took place between 24 May and 2 June 2010, is still confidential], and in November announced that they would criminalize all forms of torture and ill ‑ treatment. Detainees continued to be held incommunicado, allegations of torture were not investigated and ‘confessions’ allegedly given under duress were accepted as evidence in trials. The government failed for a further year to submit its first report under the UN Convention against Torture, which Lebanon ratified in 2000. It also failed to establish an independent body empowered to inspect detention centres, as required by the Optional Protocol to the Convention against Torture to which Lebanon became party in 2008. 2. Human Rights Watch 75. In its 2011 report on Lebanon, Human Rights Watch said that a number of detainees, especially suspected spies for Israel and armed Jihadists, had told the organisation that their interrogators had tortured them in a number of detention facilities, including the Ministry of Defence and the Information Branch of the Internal Security Forces. 2. International Crisis Group: Nurturing Instability: Lebanon’s Palestinian Refugee Camps (19 February 2009) 76. The International Crisis Group is a non ‑ governmental organisation based in Brussels. Its stated aim is to “prevent and resolve deadly conflict”. It has field representations in, inter alia, Beirut, Damascus and Jerusalem. 77. In a comprehensive report on the Palestinian refugee camps in Lebanon ( Nurturing Instability: Lebanon’s Palestinian Refugee Camps, issued on 19 February 2009) it described in detail the main political actors in the camps, the situation in each of them, the evolution of Lebanese ‑ Palestinian relations since 1948, the status of the refugees, the inter ‑ factional conflicts in the camps, the conflicts within the Palestinian Liberation Organisation and Fatah, the failures in the management of the camps, and the spread of jihadism in them. The relevant parts of the report read as follows: “A number of analysts argued that power struggles within Fatah and widespread corruption within the movement are a reason for growing chaos within the camps. They have undermined the credibility and effectiveness of important institutions, such as the Armed Struggle Organisation and contributed to security breakdowns. Perhaps most important, neither the PLO nor Fatah has been able to deal effectively with the challenge of jihadi groups that reject the organisation’s nationalist project, strategy and alliances. In Ain al-Helweh for example, a conflict between two Fatah leaders significantly weakened the movement. Crisis Group interviews, Palestinian officials and residents, Beirut and Palestinian camps, April-December 2008. Some observers believe that violent acts in Ain al-Helweh attributed to jihadis were perpetrated by Fatah members opposed to [Abbas] Zaki [, a local Fatah leader]. ... This view was echoed by other Palestinian and Lebanese officials and sheikhs. ...” 78. In relation to jihadism in the camps, the report noted the following: “By the late 1980s, several converging factors promoted the rise of a salafist jihadi current in the camps: the absence of any dominant political force on the Lebanese Palestinian scene; the camps’ seclusion and isolation from the rest of the country; deteriorating living conditions; and the wider spread of Islamism throughout the Middle East. The collapse of the peace process in the late 1990s intensified the process. Taking advantage of young refugees’ identity crisis, socioeconomic despair and leadership vacuum, groups such as Jund al ‑ Sham, Usbat al ‑ Ansar, Usbat al ‑ Nour, al ‑ Haraka al ‑ Islamiyya al ‑ Mujahida and, more recently, Fatah al ‑ Islam, prospered. This was particularly true in the North, a traditional Sunni stronghold which lacks a powerful Lebanese leadership, and in Ain al ‑ Helweh, which – unlike the other camps – is not under any single faction’s control. In Ain al ‑ Helweh in particular, jihadi groups presented themselves as alternatives to a PLO leadership viewed by many as discredited and corrupt and which the Islamists accused of capitulating to Israel and the West by renouncing Palestinian rights, notably the right of return. ... Largely beyond the state’s reach, the camps have become de facto sanctuaries for weapons but also for Lebanese and Palestinian fugitives sought by Lebanese authorities, including very often for minor offences. Caught in the camps and with no realistic prospect on the outside, they form a sizeable pool of potential jihadi recruits. Militant groups offer protection, a social network and, in some cases, a cause in which to believe. A PLO official remarked: ‘They are trapped in the camps and have no future outlook. They fear they will live the rest of their lives as fugitives and thus are easily manipulated’. ... ... the groups have a vested interest in maintaining the status quo in the camps, avoiding state interference and reaching tacit understandings with a variety of local actors. In Ain al ‑ Helweh, Usbat al ‑ Ansar is now seen by all Palestinian factions – including Fatah, its traditional foe – as a full ‑ fledged participant in the camp’s security structure. Likewise, the leader of al ‑ Haraka al ‑ Islamiyya al ‑ Mujahida, Sheikh Jamal Khattab, helps mediate between major Palestinian factions and more militant groups in Ain al ‑ Helweh. Ain al ‑ Helweh provides a good example of how local actors seek to avoid clashes with jihadi groups. For Hizbollah, a confrontation could deepen sectarian tensions, thereby further exposing it to the charge of being a narrow Shiite group. ... For its part, Fatah is wary of a confrontation with Usbat al ‑ Ansar whose outcome would not be guaranteed. The Future Movement and in particular the Hariri family fear that a crisis with jihadi groups could jeopardise their hegemony over the Sunni community. During a 2004 crisis, Usbat al ‑ Ansar joined in efforts to force Jund al ‑ Sham from one of the camp’s northern neighbourhoods. ...” 3. United States Committee for Refugees and Immigrants: World Refugee Survey 2009: Lebanon 79. The United States Committee for Refugees and Immigrants is a non ‑ governmental organisation founded in 1911 to serve refugees and immigrants and defend the rights of refugees, asylum seekers, and internally displaced persons worldwide. It publishes annual World Refugee Survey and Refugee Reports. 80. In its 2009 country profile on Lebanon, issued on 17 June 2009, it noted, inter alia, the following: “Clashes between Fatah and the fundamentalist, reportedly al Qaeda ‑ inspired group Jund al ‑ Sham in [A]in [al ‑ ]Hilweh camp killed several Palestinians. Fighting killed three[:] a Jund al ‑ Sham leader and two other Palestinians in July. Three died and three were wounded in a gun battle in mid ‑ September, and about a week later an explosion killed one and wounded four.” F. News Reports 81. In a news report of 21 March 2008 the BBC described Jund al ‑ Sham (“Soldiers of Greater (or historic) Syria”) as a radical splinter group formed in 2002. The report said that the group had been blamed or had claimed responsibility for a number of bombings and gun battles in Lebanon and Syria. The previous years it had fought Lebanese troops after joining a revolt by fellow Islamic militant group Fatah al ‑ Islam which was centred on the northern Palestinian refugee camp of Nahr al ‑ Bared. 82. On 17 May 2007 the news service IRIN, a non ‑ profit project of the United Nations Office for the Coordination of Humanitarian Affairs, reported that two Fatah members had been killed the previous week in clashes with Jund al ‑ Sham in Ain al ‑ Hilweh. It said that the group, whose active fighters were believed to number fewer than fifty out of an estimated membership of up to two hundred and fifty, had frequently been blamed by the Syrian authorities for a string of failed attacks in Syria over the previous two years. A revenge attack on 15 May 2007 by unidentified gunmen in the camp had wounded two Jund al ‑ Sham members. 83. On 5 August 2007 IRIN reported that on 4 June 2007 fighters from Jund al ‑ Sham, which it described as a loosely knit “takfiri” group – which Palestinians had said had no leader and had all but disbanded – had attacked a Lebanese Army checkpoint outside Ain al ‑ Hilweh. The report said that the group was based in a small stretch of no ‑ man’s ‑ land known as Taamir, between the boundary of Ain al ‑ Hilweh and one of the Lebanese Army checkpoints that overlooked the camp. Following the attack, Ansar Allah, another Palestinian Islamist group, had been tasked with heading an eighty ‑ member security force to control two of the camp border checkpoints, including the one overlooking the Jund al ‑ Sham stronghold. The other camp border checkpoints, as well as security inside the camp, had remained the task of Fatah. The report went on to say that Fatah militants had had regular deadly clashes with Jund al ‑ Sham over the previous six months, and also faced a challenge from other armed and more radical Palestinian groups, such as the Popular Front for the Liberation of Palestine General Command or Usbat al ‑ Ansar. 84. On 29 April 2008 IRIN reported that on 21 March 2008 heavy clashes had broken out between Fatah and members of Jund al ‑ Sham. The fighting, which had prompted at least one hundred families to flee the camp, had been triggered after Fatah had seized a commander of Jund al ‑ Sham who had fought the Lebanese Army the previous summer, and had handed him over to that Army. Fatah’s security chief in Lebanon, Mounir Maqdah, had told the agency that while the Jund al ‑ Sham commander had been seized without enough coordination with other factions in Ain al ‑ Hilweh, new security arrangements would ensure that no militants could exist beyond the reach of the inter ‑ factional committees. 85. In a recent incident, on 2 January 2010 a Fatah member was wounded during a half ‑ hour skirmish with members of Jund Al ‑ Sham. However, from reports in the press it appears that after that the situation in the camp calmed down and that on 4 August 2010 the two groups’ leaders in Ain al ‑ Hilweh made a truce. 86. On 25 December 2010 the television network Al ‑ Jazeera reported that a senior Jund al ‑ Sham commander, Ghandi Sahmarani, had been found murdered in Ain el-Hilweh. It said that the death of Sahmarani “could be a major blow for [Jund al ‑ Sham], which has had several leaders and members either killed or fleeing its ranks in the past few years”. 87. On 3 January 2011 the Lebanese news website NOW Lebanon reported on the latest developments with Jund al ‑ Sham. The report said, inter alia, that colonel Issa, appointed by Palestinian President Mahmoud Abbas in May 2010 as the head of the Fatah security in the camps, had said that Fatah and other factions present in Ain al ‑ Hilweh, mainly Usbat al ‑ Ansar, had reached a peace agreement. After talks, Usbat al-Ansar leaders had given Issa a free mandate to annihilate the threat he said jihadists and radicals posed to the camp’s security. Issa was quoted as saying that “[a]fter some battles with these factions, some died, many of them were captured and handed over to the Lebanese authorities, and those that were left fled. These groups took advantage of the instability in Lebanon and infiltrated the camp, and when we realized that they were among suspects in explosions taking place around stores, we started dealing with them with security means, we captured many of them, went to battle with some, and some, like I said, fled”. He had also said that some of the jihadists had left for Europe, adding that “[t]hey were originally in the ‘emergency’ area [at the outskirts of the camp] and started fleeing bit by bit. Some left to France, some to Belgium, some to Sofia in Bulgaria”. He had said that in mid ‑ December 2010, five of the runaways had been sent back to Lebanon by the Bulgarian authorities. Among them had been Youssef Kayed, a rogue former Fatah member who had rebelled against the central command, Anwar al ‑ Sidawi and Imad Karroum, both wanted by the Lebanese authorities. The report went on to say that according to another Fatah official in Ain al ‑ Hilweh, what was left of the radical Islamists was no longer a threat without the head of the militant group. “The phenomenon of Jund al ‑ Sham is over in the camps now and does not constitute a threat anymore,” he had told NOW. 88. In an article of 26 April 2011, titled “Fatah and Jund al ‑ Sham clash in Ain al ‑ Hilweh”, the Lebanese newspaper The Daily Star reported that during the previous weekend there had been armed clashes, with an exchange of missiles, between Fatah and members of Jund al ‑ Sham. They had started after two unidentified individuals had refused to obey the commands of the security forces at a checkpoint. Jund al ‑ Sham militants had joined the conflict after reportedly coming under fire from Fatah. THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 89. The applicant alleged that if expelled to Lebanon, he would face a real risk of ill ‑ treatment or death. He relied on Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 90. The Government submitted that the applicant’s fears were groundless in view of the prohibition in section 44a of the Aliens Act 1998 on the expulsion of aliens to a country where their health or life would be in jeopardy. The order to expel him had been intended to protect the national security of Bulgaria. However, its enforcement was subject to the provisions of section 44a, which coincided with the principles underlying Articles 2, 3 and 5 of the Convention. The practice in such cases was for the competent authorities, which worked in close cooperation with the Ministry of Foreign Affairs and non ‑ governmental organisations, to verify the issue upon expulsion of their own motion. The Ministry of Foreign Affairs kept an updated list of safe third countries that could receive individuals in the applicant’s position. The authorities were thus complying with the absolute prohibition of Article 3 of the Convention, and, unlike the situation obtaining in Saadi v. Italy ([GC], no. 37201/06, ECHR 2008 ‑ ...), were not seeking to balance national security considerations against the risk of ill ‑ treatment faced by the applicant. The bar in section 44a applied to all aliens, including those subject to expulsion orders on national security grounds. 91. The applicant replied that the Government failed to say anything about the risk that he faced in Lebanon. As for their reliance on section 44a, there existed no mechanism to ensure its effective application. The only opportunity for him to invoke that provision to prevent his expulsion to Lebanon had been in the proceedings for judicial review of the expulsion order. However, the Supreme Administrative Court had held that the point was irrelevant. In any event, the only procedure in which the applicant could prove that he risked death or ill ‑ treatment were asylum proceedings. When examining his asylum request, the State Refugees Agency had found that risk to be real, based as it was on the applicant’s personal circumstances and the general situation in the Palestinian refugee camps in Lebanon. On that account it had granted him humanitarian protection. The risk could therefore be regarded as established. However, he could not benefit from such protection, as he fell within the exclusion clauses of sections 4(4) and 67(3) of the Asylum and Refugees Act of 2002. B. The Court’s assessment 1. Admissibility 92. Since the Government appear to contest that the applicant is at risk of being expelled to a country where he may face treatment contrary to Article 3, the Court must first examine his victim status. It notes, firstly, that the order for his expulsion, having been upheld by the Supreme Administrative Court, is final and enforceable (see, mutatis mutandis, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 358, ECHR 2005 ‑ III; Abdulazhon Isakov v. Russia, no. 14049/08, § 100, 8 July 2010; Karimov v. Russia, no. 54219/08, § 90, 29 July 2010; and Kolesnik v. Russia, no. 26876/08, § 63, 17 June 2010, and contrast Vijayanathan and Pusparajah v. France, 27 August 1992, § 46, Series A no. 241 ‑ B; Pellumbi v. France (dec.), no. 65730/01, 18 January 2005; A.D. v. Switzerland (dec.), no. 13531/03, 18 January 2005; Etanji v. France (dec.), no. 60411/00, 1 March 2005; Shamayev and Others, cited above, §§ 354 ‑ 55, ECHR 2005 ‑ III; and Nasrulloyev v. Russia, no. 656/06, § 60, 11 October 2007). Secondly, although issued more than a year and a half ago, it continues to have full legal effect (contrast Benamar and Others v. France (dec.), no. 42216/98, 14 November 2000). Lastly, there is no indication that the authorities have suspended its enforcement (contrast Andrić v. Sweden (dec.), no. 45917/99, 23 February 1999), or that it is possible to challenge its enforcement (contrast Kalantari v. Germany (striking out), no. 51342/99, § 56, ECHR 2001 ‑ X; and Yildiz v. Germany (dec.), no. 40932/02, 13 October 2005). The question whether the bar in section 44a of the Aliens Act 1998 on the expulsion of aliens to countries where their life or freedom would be in danger or where they may face a risk of ill ‑ treatment (see paragraph 38 above) would in fact prevent the applicant’s removal to Lebanon goes to the merits of the case (see Boutagni v. France, no. 42360/08, §§ 47 ‑ 48, 18 November 2010). Nor is it apparent, from the information available in the case file, that the Lebanese authorities will never issue travel documents enabling the applicant to re ‑ enter Lebanon. 93. In those circumstances, the Court considers that the applicant may claim to be a victim within the meaning of Article 34 of the Convention. 94. The Court further considers that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 95. The Court wishes to emphasise at the outset that it is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence, which constitutes, in itself, a grave threat to human rights (see, among other authorities, Lawless v. Ireland (no. 3), 1 July 1961, §§ 28 ‑ 30, Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, Series A no. 25; Öcalan v. Turkey [GC], no. 46221/99, § 179, ECHR 2005 ‑ IV; Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996 ‑ V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 126, ECHR 2009 ‑ ...; and A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010). Faced with such a threat, the Court considers it legitimate for Contracting States to take a firm stand against those who contribute to terrorist acts, which it cannot condone in any circumstances (see Daoudi v. France, no. 19576/08, § 65, 3 December 2009, and Boutagni, cited above, § 45). 96. The Court would next reiterate the principles governing the Contracting States’ responsibility in the event of expulsion, as established in its case-law and summarised, with further references, in paragraphs 124 ‑ 27 of its judgment in the case of Saadi (cited above): (a) 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. Neither the Convention nor its Protocols confer the right to political asylum. (b) 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 that provision implies an obligation not to deport the person in question to a country where he or she would face such a risk. (c) 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. (d) 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. As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim’s conduct, the nature of any offences allegedly committed by the applicant is therefore irrelevant. 97. In paragraphs 137 ‑ 39 of the same judgment the Court went on to reaffirm a principle that it had first articulated in its judgment in the case of 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. 98. It should be added that the existence of the obligation not to expel is not dependent on whether the source of the risk of the treatment stems from factors which involve the responsibility, direct or indirect, of the authorities of the receiving country. Having regard to the absolute character of the right guaranteed, Article 3 may extend to situations where the danger emanates from persons or groups of persons who are not public officials. What is relevant in this context is whether the applicant is able to obtain protection against and seek redress for the acts perpetrated against him or her (see H.L.R. v. France, 29 April 1997, § 40, Reports 1997 ‑ III; T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000 ‑ III; Headley v. the United Kingdom (dec.), no. 39642/03, 1 March 2005; N. v. Finland, no. 38885/02, § 163, 26 July 2005; Salah Sheekh v. the Netherlands, no. 1948/04, §§ 137 and 147, 11 January 2007; N.A. v. the United Kingdom, no. 25904/07, § 110, 17 July 2008; F.H. v. Sweden, no. 32621/06, § 102, 20 January 2009; and N. v. Sweden, no. 23505/09, §§ 55 ‑ 62, 20 July 2010). 99. In Saadi (cited above, §§ 128 ‑ 33) the Court also summarised, with further references, the principles governing the manner of assessing the risk of exposure to treatment contrary to Article 3: (a) In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court takes into account all the material placed before it or, if necessary, material obtained proprio motu. Its examination of the existence of a real risk must necessarily be a rigorous one. (b) 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. Where such evidence is adduced, it is for the Government to dispel any doubts about it. (c) 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 or her personal circumstances. (d) 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 organisations such as Amnesty International, or governmental sources, including the United States Department of State. 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, 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. (e) 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 protection of Article 3 enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous subparagraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned. (f) 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 removed when the Court examines the case, the relevant time will be that of the Court’s examination. Accordingly, while 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. 100. In paragraphs 140 ‑ 42 of the same judgment the Court, in response to arguments by certain governments in relation to the standard of proof in such matters, reaffirmed that for a planned expulsion by a Contracting State to be in breach of the Convention, it is sufficient for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3, even where he or she is regarded as presenting a threat to the Contracting State’s national security. 101. Thus, any considerations in the present case having to do with the question whether the applicant presents a risk to the national security of Bulgaria are irrelevant for the Court’s examination. The salient issue is whether substantial grounds have been shown for believing that there is a real risk that he will face ill ‑ treatment or death if the order for his expulsion is implemented (see Ismoilov and Others v. Russia, no. 2947/06, § 126, 24 April 2008). The Court notes in this connection that the Supreme Administrative Court did not attempt to assess the question of risk, confining itself to the question of the lawfulness of the expulsion order. It is a matter of regret that that court found the applicant’s statement about the risk which he faced if he were to be returned to Lebanon “irrelevant for the ... proceedings” (see paragraph 23 above). Not only does the judgment of the Supreme Administrative Court not assist the Court in the assessment of the risk, such approach cannot be considered compatible with the need for independent and rigorous scrutiny of the substance of the applicant’s fears, which were plainly arguable in the light of the opinion delivered by the State Refugees Agency (see paragraph 11 above). The Court will revert to this matter in the context of Articles 13 and 46 (see paragraphs 121 and 139 below). In the light of the domestic court’s failings, it falls to the Court to assess the question of risk with reference to the above ‑ mentioned principles. 102. When considering that question on 29 October 2009, the State Refugees Agency was satisfied that there existed substantial grounds for believing that there was a real risk that the applicant would face ill ‑ treatment or death in Lebanon, and granted him humanitarian protection, based, firstly, on his particular circumstances and, secondly, on the general situation in the Palestinian refugee camps in Lebanon. Its decision mainly relied on the fact that the applicant had been a member of Fatah and had been personally engaged in a violent conflict with members of a militant group (Jund al ‑ Sham) operating in the Palestinian refugee camp (Ain al ‑ Hilweh) where he had lived (see paragraph 11 above). Those findings carry significant weight, for two reasons. First, that Agency is a specialised body with particular expertise in this domain. Secondly, its officers were able to conduct a personal interview with the applicant. They had an opportunity to see, hear and assess his demeanour, and were thus in a position to test the credibility of his fears and the veracity of his account (see, mutatis mutandis, Ahmed v. Austria, 17 December 1996, § 42, Reports 1996 ‑ VI; Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000 ‑ VIII; Abdolkhani and Karimnia v. Turkey, no. 30471/08, §§ 82 ‑ 83, 22 September 2009; and R.C. v. Sweden, no. 41827/07, § 52, 9 March 2010). 103. Moreover, this evidence cannot be considered in isolation. Instead, it must be assessed against the background of the available information on the situation in Lebanon and that of the Palestinian refugees there. It is true that the situation in the country as a whole does not appear so serious that the return of the applicant there would constitute, in itself, a breach of Article 3 (see paragraph 58 above). However, it cannot be overlooked that the applicant is a stateless Palestinian originating from a refugee camp in Lebanon (see paragraphs 1 and 7 above). There is therefore a likelihood that he would not be allowed to reside in Lebanon proper, but would have to return to the camp from which he fled, Ain al ‑ Hilweh. The information available on the Palestinian refugee camps in general and Ain al ‑ Hilweh in particular (see paragraphs 52 ‑ 55, 60, 62, 65 ‑ 73, 77, 78, 80 and 82 ‑ 88 above) shows that they are not under the control of the Lebanese authorities, but of various Palestinian armed factions. They are secluded from the rest of the country, are often surrounded by Lebanese army checkpoints, and have been described in reports as “beyond the [S]tate’s reach”, “ de facto sanctuaries for weapons” and “a safe heaven for those who seek to escape the authority of the State”. They continue to be plagued by outbursts of violence and armed clashes between various factions. Ain al ‑ Hilweh, which is very densely populated and not under the control of any single faction, appears to be one of the more chaotic and violent camps, where Fatah and various radical Islamist groups have for decades been engaged in a conflict of varying degrees of intensity. Since 2007, there has been a string of violent clashes between Fatah and Jund al ‑ Sham, which is reported to have about fifty armed men at its disposal. Although in late 2010 the Jund al ‑ Sham suffered some setbacks, including the death of a leader, it reengaged in armed clashes with Fatah in March and April of this year. In addition, there appear to exist power struggles within the ranks of Fatah itself. They, together with corruption within the movement, have apparently contributed to various security breakdowns. One of those internal divisions is pitting the applicant’s purported “protector”, Mounir Maqdah (see paragraph 9 above), against other figures in Fatah. It is therefore not readily apparent that Fatah, despite its relative dominance in Ain al ‑ Hilweh, would be able to provide the applicant with effective protection. Nor is it apparent that the applicant would be able to settle in another Palestinian refugee camp. Fatah apparently does not have strong positions in the camps in northern Lebanon, where the radical Islamist groups are more powerful. Those circumstances, coupled with the applicant’s personal account, amount to at least prima facie evidence capable of proving that there are substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 if expelled to Lebanon. Having regard to the information referred to above, the Court is not persuaded that the situation has evolved to an extent that the findings made by the State Refugees Agency in October 2009 on the question of risk are no longer valid. Indeed, as recently as 19 April 2011 the Secretary ‑ General of the United Nations reported on violent clashes in Ain al ‑ Hilweh and estimated that there still existed a threat of violence inside the Palestinian refugee camps (see paragraph 73 above). The burden is therefore on the State to dispel any doubts in that regard. 104. However, no evidence has been presented by the Government in relation to that issue. In that connection, it is noteworthy that when issuing and reviewing the decision to expel the applicant, the competent domestic authorities and courts did not try to make any assessment of that risk. The expulsion order and the proposal for one to be issued gave no consideration to this matter (see paragraphs 14 and 15 above). In the ensuing judicial review proceedings, the Supreme Administrative Court expressly stated that the applicant’s fear that his life would be at risk in Lebanon was irrelevant (see paragraph 23 above). The Court is therefore unable to conclude that the Bulgarian authorities have duly addressed the applicant’s concerns with regard to Article 3 (see, mutatis mutandis, Khodzhayev v. Russia, no. 52466/08, § 104, 12 May 2010, and Khaydarov v. Russia, no. 21055/09, §§ 112 ‑ 14, 20 May 2010). Their uncorroborated assertions that he is not who he says he is, but is a member of a militant Jihadist organisation who is sought by the Lebanese authorities in connection with a number of assassinations (see paragraphs 14, 22, 23 and 87 above) show, if anything, that he may be at even greater risk of ill ‑ treatment, by the Lebanese authorities themselves. There are a number of reports indicating that those authorities are likely to ill ‑ treat persons suspected of involvement with such groups (see paragraphs 61, 64, 74 and 75 and above). There is no indication that the Government have sought or obtained any form of assurance on the part of Lebanon in relation to such matters. In any event, the existence of assurances does not absolve a Contracting State from its obligation to consider their practical application (see, among other authorities, Babar Ahmad and Others v. the United Kingdom (dec.), nos. 24027/07, 11949/08 and 36742/08, § 106, 6 July 2010). 105. In their observations, the Government referred to the prohibition in section 44a of the Aliens Act 1998 (see paragraph 38 above). They explained that the practice in such cases was for the authorities to verify the matter when executing the expulsion order, and that the Ministry of Foreign Affairs kept an updated list of safe third countries that could receive individuals in the applicant’s position. However, the Court does not consider that the Government’s statement can be regarded as a binding assurance that the applicant will not be expelled to Lebanon, for two reasons. First, in contrast to the express assurances given by the French Government in Boutagni (cited above, §§ 20 and 42), in the present case the Government did not declare that the applicant would not be removed to Lebanon, but merely said that the point would be examined at the time of the execution of the expulsion order. Secondly, the Government’s statement is not based on, or reflected in, a binding legal act (contrast Boutagni, cited above, §§ 19 ‑ 20 and 47 ‑ 48), and it is unclear whether it can of itself bind the authorities responsible for executing the expulsion order (see, mutatis mutandis, Shamayev and Others, cited above, §§ 344 ‑ 45). 106. The Court’s 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 has fled (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 286, 21 January 2011). It is not persuaded that, if and when they proceed with the applicant’s expulsion, the Bulgarian authorities will examine with the necessary rigour whether his return to Lebanon would put him at risk of treatment prohibited under Article 3 (contrast M.H. v. Sweden (dec.), no. 10641/08, §§ 25 and 41, 21 October 2008). The Government did not provide any particulars about the manner in which the immigration authorities apply section 44a when implementing expulsion orders, and did not give any concrete examples. The Aliens Act 1998 and the regulations for its application are silent on this point, and there are no reported cases (see paragraph 38 in fine above). It is thus unclear by reference to what standards and on the basis of what information the authorities will make a determination, if any, of the risk faced by the applicant if removed to Lebanon. Nor is there any indication as to whether, if the authorities choose to send the applicant to a third country, they will properly examine whether he would in turn be sent from there to Lebanon without due consideration for the risk of ill ‑ treatment. The Court reiterates that under its case ‑ law removal to an intermediary country does not affect the responsibility of the expelling State to ensure that the applicant is not exposed to treatment contrary to Article 3 as a result of the decision to expel (see T.I. v. the United Kingdom, cited above; Salah Sheekh, cited above, § 141; K.R.S. v. the United Kingdom (dec.), no. 32733/08, 2 December 2008; Abdolkhani and Karimnia, cited above, § 88; Babar Ahmad and Others, cited above, §§ 113 ‑ 16; and M.S.S. v. Belgium and Greece, cited above, §§ 338 ‑ 61). 107. The lack of a legal framework providing adequate safeguards in this domain allows the Court to conclude that there are substantial grounds for believing that the applicant risks a violation of his rights under Article 3 (see, mutatis mutandis, Abdolkhani and Karimnia, cited above, § 89). In this connection, the Court finds it necessary to reiterate that the grave and irreversible nature of the potential consequences is such that the matter calls for rigorous scrutiny. 108. In view of those considerations, the Court concludes that the applicant’s expulsion, if carried out, would be in breach of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 109. The applicant complained under Article 8 of the Convention that his expulsion would be unlawful and disproportionate. 110. Article 8 provides, 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.” 111. The Court observes at the outset that, in so far as the applicant may be taken to rely on Article 8 in relation to any risk to his physical integrity as a result of his expulsion, the issue has already been addressed in the Court’s reasoning under Article 3. In so far as the applicant may be taken to rely on Article 8 in relation to any private or family life in Bulgaria, the Court notes that he has not alleged that he has a family life or, indeed, any relatives in Bulgaria. Nor does it appear that he has a private life in that country. He arrived there on 24 May 2009, tried to leave in August 2009, and was later settled in a housing facility operated by the State Refugees Agency. He was granted humanitarian protection on 29 October 2009, but was arrested with a view to deportation less than a month after that, on 17 November 2009 (see paragraphs 8 ‑ 13 and 15 above). He cannot therefore be regarded as a settled migrant who has developed a private life in Bulgaria (contrast Maslov v. Austria [GC], no. 1638/03, § 63, 23 June 2008, and Miah v. the United Kingdom (dec.), no. 53080/07, § 17, 27 April 2010). On the contrary, his stay in Bulgaria has been brief and at all times precarious (see, mutatis mutandis, N.M. and M.M. v. the United Kingdom (dec.), nos. 38851/09 and 39128/09, 25 January 2011). Article 8 is not therefore applicable. 112. It follows that this complaint 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. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 113. The applicant complained under Article 13 in conjunction with Articles 3 and 8 of the Convention that the Supreme Administrative Court had not genuinely scrutinised whether he represented a risk for national security, had refused to examine whether he would risk ill ‑ treatment or death if expelled to Lebanon, and had not considered whether such expulsion would be proportionate. 114. Article 13 provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties’ submissions 115. The Government submitted that the applicant had been able to challenge the order for his expulsion in judicial review proceedings, in the course of which he had been able to acquaint himself with all documents in the case file and seek to rebut the assertions of the authorities. In judicial review proceedings, the courts reviewed whether the administrative decision had been issued by a competent authority, in due form, and in compliance with the rules of administrative procedure and substantive law. In the applicant’s case, the Supreme Administrative Court had done just that. It had examined the arguments of the parties and had given reasons for finding against the applicant. It is true that the question whether the applicant faced a risk of ill ‑ treatment upon expulsion had been raised before that court. However, since the proceedings concerned the lawfulness of the expulsion order, the court had deemed that question to be irrelevant. Domestic courts could review only specific administrative decisions. The applicant did not claim that there existed a tacit or an express refusal to stay the enforcement of the order for his expulsion by reference to section 44a. 116. The applicant submitted that section 44a did not have direct application. He had raised the issue of risk in the proceedings for judicial review of the expulsion order, which was the only available legal avenue where such issues could be addressed. However, the Supreme Administrative Court had said that the issue was irrelevant. B. The Court’s assessment 117. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 118. On the merits, the Court must start by examining which of the applicant’s substantive complaints in relation to his expulsion were arguable, because the scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint (see, as a recent authority, A. v. the Netherlands, cited above, § 157). 119. Article 8 not being applicable (see paragraphs 111 and 112 above), the applicant’s claim under Article 13 in conjunction with Article 8 is not arguable. It is, then, not necessary to establish whether the Supreme Administrative Court subjected the allegation that the applicant represented a national security risk to a genuine examination or whether it gave consideration to the question whether the expulsion amounted to a disproportionate interference with the applicant’s right to respect for his private or family life (see, mutatis mutandis, A. v. the Netherlands, cited above, § 160, and contrast C.G. and Others v. Bulgaria, §§ 60 ‑ 64, and Raza, § 63, both cited above). 120. By contrast, the Court’s findings in paragraphs 101 ‑ 103 above show that the applicant’s claim under Article 3 was arguable. He was therefore entitled to an effective remedy in that respect. The notion of an effective remedy in such circumstances has two components. Firstly, it imperatively requires close, independent and rigorous scrutiny of the 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, cited above, § 293, with further references). That scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State (see Chahal, cited above, 151 in fine ). The second requirement is 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, and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 66 in fine, ECHR 2007 ‑ II; Muminov v. Russia, no. 42502/06, § 101, 11 December 2008; Abdolkhani and Karimnia, cited above, § 108; and M.S.S. v. Belgium and Greece, cited above, § 293 in fine ). 121. Concerning the “scrutiny” requirement, the Court observes that when examining the applicant’s legal challenge against the order for his expulsion, the Supreme Administrative Court expressly refused to deal with the question of risk, saying that any threat to the applicant in Lebanon was irrelevant for determining the lawfulness of his expulsion (compare with Jabari, cited above, § 49). As for the “suspensive effect” requirement, it should be noted that under Bulgarian law applications for judicial review of expulsion orders issued on national security grounds do not have automatic suspensive effect (see paragraph 35 above). It furthermore appears that the courts have no power to suspend the enforcement of such orders, even if an irreversible risk of death or ill ‑ treatment in the receiving State is claimed (see paragraphs 31, 34 and 37 above). The proceedings for judicial review of the expulsion order against the applicant cannot therefore be regarded as an effective remedy in respect of his grievance under Article 3. 122. The Government’s case was that the issue of risk would be examined upon the enforcement of the expulsion order against the applicant and that the authorities would not remove him from Bulgaria without ensuring that this would not fall foul of the prohibition set out in section 44a of the Aliens Act 1998 (see paragraph 38 above). However, the Court has already found that there are no guarantees that before proceeding with the expulsion the authorities would subject the applicant’s claims under Article 3 of the Convention to rigorous scrutiny (see paragraphs 105 and 106 above). More importantly, the Government did not point to any procedure whereby the applicant would be able to challenge their assessment of those claims. From the provisions of the Aliens Act 1998 and the regulations for its application it does not appear that it is possible to bring a separate legal challenge against the enforcement of the expulsion order, let alone that there exists an avenue of redress that meets the two requirements set out in paragraph 120 above. The Court would emphasise in that connection that the existence of remedies must be sufficiently certain not only in theory but also in practice, and that it falls to the respondent State to establish that (see, among other authorities, McFarlane v. Ireland [GC], no. 31333/06, § 107, ECHR 2010 ‑ ...). 123. In the light of the above, the Court concludes that the applicant does not have an effective remedy in relation to his complaint under Article 3 of the Convention. There has therefore been a violation of Article 13 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 124. The applicant complained that his detention had ceased to be justified and had become arbitrary. He relied on Article 5 § 1 (f) of the Convention, which provides as follows: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The parties’ submissions 125. The Government submitted that the law governing detention pending deportation was fully Convention ‑ compliant. It also met the requirements of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third ‑ country nationals. Those standards had been fully observed in the applicant’s case. His placement in the detention facility had been reviewed by an independent body, as the applicant had sought judicial review of the order for his detention by the Sofia Administrative Court. In the course of the proceedings the authorities had produced documents showing the grounds for taking the impugned measure. The applicant, who had been legally represented, had been able to contest the authorities’ assertions. After reviewing the legality of the detention order, the court had rejected his application. 126. The applicant submitted that there was no indication that the authorities had been actively pursuing his expulsion or that it was at all possible. The only thing that the authorities had done had been to contact the Lebanese embassy in Sofia with a view to obtaining travel documents for the applicant to allow him to enter Lebanon. They had not tried to contact the embassies of any safe third countries. In the applicant’s view, detention pending deportation should be allowed to reach the maximum eighteen ‑ month period allowed by law only in exceptional cases. B. The Court’s assessment 127. The Court considers that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 128. On the merits, the Court reiterates that 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 that provision (see, among other authorities, Chahal, § 113; A. and Others v. the United Kingdom, § 164; Mikolenko v. Estonia, no. 10664/05, § 63, 8 October 2009; and Raza, § 72, all cited above). In other words, the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi v. the United Kingdom [GC], no. 13229/03, § 74 in fine, ECHR 2008 ‑ ...). Indeed, a similar point was recently made by the ECJ in relation to Article 15 of Directive 2008/115/EC (see paragraphs 50 and 51 above). It should, however, be pointed out that unlike that provision, Article 5 § 1 (f) of the Convention does not contain maximum time ‑ limits; the question whether the length of deportation proceedings could affect the lawfulness of detention under this provision thus depends solely on the particular circumstances of each case (see Osman v. the United Kingdom, no. 15933/89, Commission decision of 14 January 1991, unreported, and Gordyeyev v. Poland (dec.), nos. 43369/98 and 51777/99, 3 May 2005). 129. In the instant case, the applicant was detained under a decision issued by a competent authority in line with the applicable law, and action was being taken with a view to his deportation. His allegations in respect of the underlying expulsion order do not call into doubt the lawfulness of his detention (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). 130. Therefore, the only issue is whether or not the authorities were sufficiently diligent in their efforts to deport the applicant. He remained in custody pending such deportation for exactly eighteen months, between 20 November 2009 and 19 May 2011 (see paragraphs 17 and 18 above). 131. In Raza (cited above, §§ 73 ‑ 75), Bulgaria was found in breach of Article 5 § 1 in similar circumstances in respect of a detention lasting a little more than two and a half years. In the meantime, following legislative amendments intended to bring Bulgarian law into line with European Union law, the detention of deportees was subjected to strict time ‑ limits of six, and in exceptional cases, eighteen months (see paragraph 44 above). As a result, the applicant spent exactly eighteen months in custody, the maximum period allowed by law. Contrary to what has been suggested by the Government, compliance with that time ‑ limit, which is in any event exceptional (see paragraphs 47, 48, 50 and 51 above), cannot automatically be regarded as bringing the applicant’s detention into line with Article 5 § 1 (f) of the Convention. As noted above, the relevant test under that provision is rather whether the deportation proceedings have been prosecuted with due diligence, which can only be established on the basis of the particular facts of the case. 132. Here, it appears that the only steps taken by the authorities during the eighteen months in issue were to write three times to the Lebanese embassy in Sofia with requests for the issuing of a travel document for the applicant (see paragraph 26 above). While the Bulgarian authorities could not compel the issuing of such a document, there is no indication that they pursued the matter vigorously or endeavoured entering into negotiations with the Lebanese authorities with a view to expediting its delivery (see Raza, cited above, § 73; Tabesh v .Greece, no. 8256/07, § 56, 26 November 2009; and Louled Massoud v. Malta, no. 24340/08, § 66, 27 July 2010). Moreover, 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 applicant’s admission to a third country. The authorities can thus hardly be regarded as having taken active and diligent steps with a view to deporting him. It is true that the applicant’s detention was subject to periodic judicial review, which provided an important safeguard (see Dolinskiy v. Estonia (dec.), no. 14160/08, 2 February 2010). However, that cannot be regarded as decisive. The last such review took place on 7 December 2010 (see paragraph 26 above), whereas the Court has not been informed whether any steps were taken with a view to removing the applicant from that time until his release more than five months later, on 19 May 2011 (see, mutatis mutandis, Mikolenko, cited above, § 64 in fine ). 133. The assessment of those points is further frustrated by the fact that neither the expulsion order nor any other binding legal act specified the destination country, as this was not required under domestic law (see paragraphs 39 and 40 above). The Court considers that this 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. 134. It is true the applicant did not spend such a long time in detention as the applicants in some other cases, such as Chahal (cited above). However, Mr Chahal’s deportation was blocked, throughout the entire period under consideration, by the fact that proceedings were being actively and diligently pursued with a view to determining whether it would be lawful and compatible with the Convention to proceed with his deportation (see Chahal, cited above, §§ 115-17, as well as, mutatis mutandis, Eid v. Italy (dec.), no. 53490/99, 22 January 2002; Gordyeyev, cited above; and Bogdanovski v. Italy, no. 72177/01, §§ 60 ‑ 64, 14 December 2006). By contrast, in the present case the Supreme Administrative Court refused to give any consideration to the point whether the applicant would be at risk if returned to Lebanon (see paragraph 23 above). Moreover, under Bulgarian law the order for the applicant’s expulsion was immediately enforceable at any time, regardless of whether a legal challenge was pending against it (see paragraphs 31, 34, 35 and 37 above, as well as Raza, cited above, § 74). The delay in the present case can thus hardly be regarded as being due to the need to wait for the Supreme Administrative Court to determine the legal challenge brought by the applicant against the order for his expulsion. 135. In view of the foregoing, the Court concludes that the grounds for the applicant’s detention – action taken with a view to his deportation – did not remain valid for the whole period of his deprivation of liberty due to the authorities’ failure to conduct the proceedings with due diligence. There has therefore been a violation of Article 5 § 1 of the Convention. V. APPLICATION OF ARTICLE 46 OF THE CONVENTION 136. The Court finds it appropriate to consider the present case under Article 46 of the Convention, which provides, in so far as relevant: “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. ...” 137. In the context of the execution of judgments in accordance with that provision, 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, and, more recently, Paksas v. Lithuania [GC], no. 34932/04, § 119, 6 January 2011). The Contracting States’ duty in international law to comply with the requirements of the Convention may thus require action to be taken by any State authority, including the legislature (see, by way of example, Viaşu v. Romania, no. 75951/01, §§ 75 ‑ 83, 9 December 2008). 138. In the present case, in view of the grave and irreversible nature of the consequences of the removal of aliens to countries where they may face ill ‑ treatment, and the apparent lack of sufficient safeguards in Bulgarian law in that respect, it appears necessary to assist the Government in the execution of their duty under Article 46 § 1 of the Convention. 139. Having regard to its findings under Articles 3, 5 § 1 and 13 of the Convention, the Court is of the view that the general measures in execution of this judgment should include such amendments to the Aliens Act 1998 or other Bulgarian legislation, and such change of administrative and judicial practice in Bulgaria so as to ensure that: (a) there exists a mechanism requiring the competent authorities to consider rigorously, whenever there is an arguable claim in that regard, the risks likely to be faced by an alien as a result of his or her expulsion on national security grounds, by reason of the general situation in the destination country and his or her particular circumstances; (b) the destination country should always be indicated in a legally binding act and a change of destination should be amenable to legal challenge; (c) the above ‑ mentioned mechanism should allow for consideration of the question whether, if sent to a third country, the person concerned may face a risk of being sent from that country to the country of origin without due consideration of the risk of ill ‑ treatment; (d) where an arguable claim about a substantial risk of death or ill ‑ treatment in the destination country is made in a legal challenge against expulsion, that legal challenge should have automatic suspensive effect pending the outcome of the examination of the claim; and (e) claims about serious risk of death or ill ‑ treatment in the destination country should be examined rigorously by the courts. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 140. 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 141. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage sustained as a result of the alleged breaches of Articles 3 and 13 of the Convention. He submitted that his impending expulsion to Lebanon, entailing a risk for his life, and the lack of procedural safeguards in that regard, had caused him stress, fear and a sense of helplessness. He claimed a further EUR 20,000 in respect of the alleged breach of Article 5 § 1 of the Convention, emphasising the excessive duration of his detention in poor conditions. He claimed EUR 10,000 in respect of an alleged breach of Article 5 § 4 of the Convention, submitting that he suffered frustration on account of the lack of speedy and effective judicial review of his detention. Lastly, he claimed EUR 10,000 in respect of the alleged breaches of Articles 8 and 13 of the Convention, submitting that the formal manner in which the courts had reviewed the order for his expulsion and the impossibility for him to lead a normal life in Bulgaria, even if released from detention, had given rise to feelings of injustice and humiliation. 142. The Government submitted that the claims were excessive, especially considering that the events on which they were based were hypothetical and had not yet occurred. In their view, the amount of compensation should not exceed the awards made in previous similar cases against Bulgaria, and should reflect the fact that part of the applicant’s complaints was rejected by the Court. 143. The Court observes that in the present case an award of just satisfaction can be based only on the violations of Article 3, Article 5 § 1, and Article 13 read in conjunction with Article 3. The applicant’s claims in relation to the alleged breaches of Article 5 § 4, Article 8, and Article 13 read in conjunction with Article 8 must therefore be rejected. 144. The Court further observes that no breach of Article 3 has as yet occurred. In those circumstances, it considers that its finding regarding Article 3 amounts of itself to sufficient just satisfaction (see Soering v. the United Kingdom, 7 July 1989, §§ 126 ‑ 27, Series A no. 161; Chahal, cited above, § 158; and Saadi, cited above, § 188). The same is true of the Court’s related finding regarding Article 13 (see Gebremedhin [Gaberamadhien], cited above, § 79). Conversely, the Court considers that the distress suffered by the applicant as a result of his detention pending deportation cannot wholly be compensated by the finding of violation (see Quinn v. France, 22 March 1995, § 64, Series A no. 311, and Raza, cited above, § 88). Having regard to the awards made in similar cases, and ruling on an equitable basis, as required under Article 41, the Court awards the applicant EUR 3,500, plus any tax that may be chargeable. B. Costs and expenses 145. The applicant sought reimbursement of EUR 1,800 incurred in legal fees for the proceedings before the Court, and EUR 46 for postage. 146. The Government submitted that the legal fees claimed appeared excessive. They were several times higher than those usually charged in Bulgaria. 147. According to the Court’s case ‑ law, costs and expenses claimed under Article 41 must have been actually and necessarily incurred and reasonable as to quantum. Having regard to the materials in its possession and the above considerations, and noting that part of the application was declared inadmissible, the Court finds it reasonable to award the applicant the sum of EUR 1,200, plus any tax that may be chargeable to him, to cover costs under all heads. C. Default interest 148. 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 5 § 1 (right to liberty and security) of the Convention because the grounds on which the applicant had been kept in detention, namely his pending deportation, had not remained valid for the whole period of his detention due to the Bulgarian authorities’ failure to conduct the proceedings with due diligence. |
820 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE 26. Act no. XX of 1949 on the Constitution, as in force at the relevant time and until 31 December 2011, contained the following provisions: Article 17 “The Republic of Hungary shall provide support for those in need through a wide range of social measures.” Article 54 (1) “In the Republic of Hungary everyone has the inherent right to life and to human dignity. No one shall be arbitrarily stripped of these rights.” Article 70/E “(1) Citizens of the Republic of Hungary have the right to social security; they are entitled to the support required to live in old age, and in cases of sickness, disability, or being widowed or orphaned, and in the case of unemployment through no fault of their own. (2) The Republic of Hungary shall implement the right to social support through the social-security system and the system of social institutions. (3) [1] The right to social support in respect of pension benefits applies to persons who have reached the statutory retirement age for old-age pension. Pension benefits may also be granted to persons below the aforementioned age by way of an act. Pension benefits provided before the statutory retirement age for an old-age pension may be reduced on the basis of statute, and may subsequently be provided in the form of social-welfare benefits, or may be terminated if the beneficiary is able to work.” 27. Article XIX of the Fundamental Law, as in force since 1 January 2012, provides: “(1) Hungary shall strive to provide social security to all of its citizens. Every Hungarian citizen shall be entitled to assistance in case of maternity, illness, disability, handicap, widowhood, orphanage and unemployment for reasons outside of his or her control, as provided for by statute. (2) Hungary shall implement social security for the persons referred to in paragraph (1) and for other persons in need through a system of social institutions and measures. (3) The nature and extent of social measures may as well be determined, in statute, in accordance with the usefulness to the community of the beneficiary’s activity. (4) Hungary shall facilitate the ensuring of the livelihood of the elderly by maintaining a general state pension system based on social solidarity and by allowing for the operation of voluntarily established social institutions. The conditions of entitlement to state pension may as well be laid down in statute with regard to the requirement of stronger protection for women.” 28. The relevant provisions of Act no. LXXXI of 1997 on Social-Security Pensions [2], as in force until 31 December 2011, stated: Section 4 (1) (c) “[Under the terms of this law], disability pension [means]: pension to be disbursed in the event of disability, on condition that the requisite length of service has been accumulated.” Section 6 “(1) The pensions that may be granted within the framework of the social-security pension system to the insured person in his or her own right are as follows: (a) the old-age pension, (b) the disability pension, ... (d) the rehabilitation allowance, to be granted under a separate statute [3] .” Section 23 (1) “Disability pension shall be due to a person who: (a) has suffered 67% loss of capacity to work due to health problems, physical or mental impairments, without any perspective of improvement over the coming year...; [and] (b) has accumulated the necessary length of service [a function of age, as outlined in the law]; [and] (c) does not work regularly or earns considerably less than he or she did prior to become disabled.” Section 24 (1) “The length of service necessary for the disability pension is as follows: ... at the age of 35 to 44 years: 10 years ...” Section 26 “(1) The right to disability pension shall be effective as of the date on which the disability was found to be present, based on the opinion of the medical commission. If the medical commission did not take a stance about the point at which the disability began, the date to be taken in account shall be the date on which the disability pension was requested. (2) If the claimant had not accumulated the necessary service period by the time set out in paragraph (1) above, eligibility for a disability pension shall be effective as of the day following the accumulation of the necessary length of service.” Section 29 “(1) The amount of disability pension is dependent on the person’s age when he or she becomes disabled, the length of service accumulated prior to the granting of the disability pension and the degree of disability.” 29. Concerning disability pensions to be granted after 31 December 2007, the same Act, as in force between 12 March and 31 December 2011, provided as follows: Section 36/A “(1) Disability pension shall be due to a person who: (a) has suffered [at least 79% loss of capacity to work, or between 50 and 79% loss of capacity if rehabilitation is not feasible], and (b) accumulated the requisite length of service in respect of his or her age, and (c) [does not have an income or earns considerably less than before], and (d) does not receive sick pay or disability sick pay.” 30. Act no. LXXXIV of 2007 on the Rehabilitation Allowance, as in force until 31 December 2011, provided as follows: Section 3 “(1) The rehabilitation allowance shall be due to a ... person: (a) who has suffered an impairment of health at a rate of 50 to 79 per cent and, in the context of that impairment... cannot ... continue to be employed without rehabilitation, and (aa) who is not engaged in any gainful activity; or (ab) whose monthly income is at least 30 per cent lower than [before] the impairment of health; [and] moreover (b) whose condition is amenable to rehabilitation;, and (c) who has accumulated the requisite service time in function of his or her age.” 31. Act no. CXCI of 2011 on the Benefits Granted to Persons with Reduced Work Capacity, in so far as relevant and as in force between 26 July 2012 and 31 December 2013, provided as follows: Section 2 “A person whose health status has been found to be 60% or less following a complex assessment by the rehabilitation authority (henceforth: persons with reduced work capacity) and who: (a) has been covered by social security for a minimum of 1,095 days under section 5 of [the Social Security Act] in the five years preceding the submission of his or her request, and (b) is not engaged in any gainful activities and (c) is not receiving any regular financial allowance shall be eligible for benefits granted to persons with reduced work capacity. (2) By derogation from subsection (1) (a), persons ... (b) who were in receipt of a disability pension ... or a rehabilitation allowance ... on 31 December 2011 shall be eligible for the benefits granted to persons with reduced work capacity irrespective of the duration of the period covered by social security. (3) The 1,095-day insurance period shall include: ... (b) periods of disbursement of a disability pension ..., or rehabilitation allowance...; ....” Section 3 “(1) Subject to any rehabilitation proposal made by the rehabilitation authority in the framework of the complex reassessment, the allowance to be granted for a person with reduced work capacity shall be either: (a) rehabilitation benefit, or (b) disability benefit.” Section 4 “Persons with reduced work capacity who can be rehabilitated shall be entitled to rehabilitation benefit.” Section 5 “(1) Persons with reduced work capacity shall be entitled to disability benefit if rehabilitation is not recommended.” 32. The Constitutional Court’s decision no. 1228/B/2010.AB of 7 June 2011 contains a sentence stating that “section 36/D (1) b) of the Social Security Pension Act had not created a [legitimate] expectation for those entitled to disability pension under the previous regulations” (compare and contrast with the wording of point 34 of the Constitutional Court decision quoted in the next paragraph). 33. The Constitutional Court examined Act no. CXCI of 2011 in decision no. 40/2012. (XII.6.) AB, of 4 December 2012. The decision contains, inter alia, the following passages: “27. ... From Articles 54 § 1 and 70/E of the Constitution, the Constitutional Court deduced only one individual social entitlement, specifically the right to a benefit that would ensure subsistence, that is, the provision by the State of basic subsistence to the extent that it is indispensable to secure the right to human dignity... [A subsequent decision of the Constitutional Court] amended the above principle with the proviso that ‘specific constitutional rights, such as a right to a dwelling, cannot be inferred from the obligation to provide basic subsistence’]... 30. ...The Constitutional Court has already examined the amendments to the rules governing disability pension in several decisions. Decision no. 321/B/1996.AB characterised the disability pension partly as an allowance under protection of property and partly as a social service provision. As stated in the decision, the law ‘provides for a benefit under the constitutional principle of social security for individuals who, before reaching the old-age pension age, have lost their ability to work by reason of disability or as the result of an accident... Prior to the retirement age, the disability pension is an exceptional benefit granted to individuals on the ground of their disability. Upon reaching pensionable age, individuals who are ... incapable of work ... are no longer entitled to this exceptional benefit, because once their employment [period has] terminated they are eligible to receive old-age pension on the basis of their age.’... 31. Decision no. 1129/B/2008.AB states that disability pension is one type of personal retirement benefit; however its ‘purchased right’ element is only represented inasmuch as ‘its sum is greater after a longer length of service, or is equal or close to the old-age pension. Otherwise, the principle of solidarity is predominant, since the disabled individual, who would not be eligible for an old-age pension on the basis of either his age or the length of service, receives a pension once his disability is determined.’ ... 32. In the Constitutional Court’s interpretation, the entitlement to disability pension is not guaranteed constitutionally in an as-of-right manner; rather, it is a mixed social-security and social-service benefit, available under certain conditions to individuals below retirement age suffering from ill health, who, due to their disability, have a reduced capacity to work and are in need of financial assistance because of the loss of income.” ... 34. ... [In decision no. 1228/B/2010.AB] ... the Constitutional Court held that the earlier rules on disability pension had not created a [legitimate] expectation, therefore the amendment to the conditions of entitlement had not violated any acquired right. 35. Subsequent to the adoption of the above-mentioned decisions of the Constitutional Court, the text of the Constitution changed significantly. ... 37. ... The fact that Article XIX of the Fundamental Law on social security concerns essentially State obligations and State objectives, rather than conferring rights [on individuals], represents an important change... 38. The intention to change social policies became even more explicit by virtue of [an amendment to] Article 70/E ... of the Constitution, enacted on 6 June 2011, which expressly entitled the legislature to reduce, transform into a social allowance or terminate (where there is an ability to work) such pensions as disbursed [to persons in an age] under the age-limit for the old-age pension... 40. ... From 1 January 2012 onwards, [the law] provides those with altered working capacity with a health-insurance benefit, rather than with a pension...” III. RELEVANT INTERNATIONAL LAW AND OTHER MATERIAL 34. The European Social Charter provides, as relevant: Article 12 – The right to social security “With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake: 1. to establish or maintain a system of social security; 2. to maintain the social- security system at a satisfactory level at least equal to that required for ratification of International Labour Convention No. 102 Concerning Minimum Standards of Social Security; 3. to endeavour to raise progressively the system of social security to a higher level; 4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties; b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.” Article 15 – The right of physically or mentally disabled persons to vocational training, rehabilitation and social resettlement “With a view to ensuring the effective exercise of the right of the physically or mentally disabled to vocational training, rehabilitation and resettlement, the Contracting Parties undertake: 1. to take adequate measures for the provision of training facilities, including, where necessary, specialised institutions, public or private; 2. to take adequate measures for the placing of disabled persons in employment, such as specialised placing services, facilities for sheltered employment and measures to encourage employers to admit disabled persons to employment.” 35. The European Social Charter (revised) provides, as relevant: Article 12 – The right to social security “With a view to ensuring the effective exercise of the right to social security, the Parties undertake: 1. to establish or maintain a system of social security; 2. to maintain the social security system at a satisfactory level at least equal to that required for the ratification of the European Code of Social Security; 3. to endeavour to raise progressively the system of social security to a higher level; 4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a. equal treatment with their own nationals of the nationals of other Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties; b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties.” 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; 2. to promote their access to employment through all measures tending to encourage employers to hire and keep in employment persons with disabilities in the ordinary working environment and to adjust the working conditions to the needs of the disabled or, where this is not possible by reason of the disability, by arranging for or creating sheltered employment according to the level of disability. In certain cases, such measures may require recourse to specialised placement and support services; 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.” 36. Hungary has ratified both the European Social Charter and the Revised European Social Charter, on 7 August 1999 and 20 April 2009 respectively. At the time of depositing the instrument of ratification, Hungary made a declaration enumerating the provisions of the European Social Charter by which it considered itself bound. That list contained neither Article 12 nor Article 15. Subsequently, in 2004, Hungary declared itself bound by paragraph 1 of Article 12 and by Article 15. According to the declaration deposited with the instrument of ratification of the Revised European Social Charter, Hungary continues to consider itself bound, among other provisions, by paragraph 1 of Article 12 and by Article 15. 37. The European Committee of Social Rights has “explicitly accepted alterations to social security systems in as far as such changes are necessary in order to ensure the maintenance of the social security system ... and where any restrictions do not deprive individuals of effective protection against social and [economic] risks without a tendency to gradually reduce the social security system to one of minimum assistance” (see Conclusions XIV-1, concerning Finland and Article 12 § 3 of the European Social Charter, p. 232, 30 March 1998). 38. The European Code of Social Security, which entered into force on 17 March 1968 and is referred to in paragraph 2 of Article 12 of the Revised European Social Charter, has been ratified by 21 Member States of the Council of Europe, not including Hungary. Sixteen of them accepted the obligations contained in Part IX thereof, which provides as follows: Part IX – Invalidity benefit Article 53 “Each Contracting Party for which this part of the Code is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following articles of this part.” Article 54 “The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.” Article 55 “The persons protected shall comprise: a. prescribed classes of employees, constituting not less than 50 per cent of all employees; or b. prescribed classes of the economically active population, constituting not less than 20 per cent of all residents; or c. all residents whose means during the contingency do not exceed limits prescribed in such a way as to comply with the requirements of Article 67.” Article 56 “The benefit shall be a periodical payment calculated as follows: a. where classes of employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 65 or with the requirements of Article 66; b. where all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 67.” Article 57 “1. The benefit specified in Article 56 shall, in a contingency covered, be secured at least: a. to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or 10 years of residence; or b. where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number of contributions has been paid. 2. Where the benefit referred to in paragraph 1 of this article is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least: a. to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution or employment; or b. where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, half the yearly average number of contributions prescribed in accordance with paragraph 1.b of this article has been paid. 3. The requirements of paragraph 1 of this article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence. 4. A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced benefit shall be payable in conformity with paragraph 2 of this article.” Article 58 “The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.” 39. The United Nations Convention on the Rights of Persons with Disabilities (promulgated in Hungary by Act no. XCII of 2007) contains the following provisions: 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: ... (c) To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assistance and respite care; ... (e) To ensure equal access by persons with disabilities to retirement benefits and programmes.” 40. Convention no. 102 of the International Labour Organisation (ILO) on Social Security (Minimum Standards), referred to in paragraph 2 of Article 12 of the European Social Charter, entered into force on 27 April 1955 and has so far been ratified by fifty-four countries, not including Hungary. Fifteen member States of the Council of Europe have ratified Part IX of this instrument, which reads as follows: Part IX – Invalidity benefit Article 53 “Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.” Article 54 “The contingency covered shall include inability to engage in any gainful activity, to an extent prescribed, which inability is likely to be permanent or persists after the exhaustion of sickness benefit.” Article 55 “The persons protected shall comprise-- (a) prescribed classes of employees, constituting not less than 50 per cent of all employees; or (b) prescribed classes of the economically active population, constituting not less than 20 per cent of all residents; or (c) all residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 67; or (d) where a declaration made in virtue of Article 3 is in force, prescribed classes of employees, constituting not less than 50 per cent of all employees in industrial workplaces employing 20 persons or more.” Article 56 “The benefit shall be a periodical payment calculated as follows: (a) where classes of employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 65 or with the requirements of Article 66; (b) where all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 67.” Article 57 “1. The benefit specified in Article 56 shall, in a contingency covered, be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or 10 years of residence; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number of contributions has been paid. 2. Where the benefit referred to in paragraph 1 is conditional upon a minimum period of contribution or employment, a reduced benefit shall be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution or employment; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed a qualifying period of three years of contribution and in respect of whom, while he was of working age, half the yearly average number of contributions prescribed in accordance with subparagraph (b) of paragraph 1 of this Article has been paid. 3. The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part XI but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence. 4. A proportional reduction of the percentage indicated in the Schedule appended to Part XI may be effected where the qualifying period for the pension corresponding to the reduced percentage exceeds five years of contribution or employment but is less than 15 years of contribution or employment; a reduced pension shall be payable in conformity with paragraph 2 of this Article.” Article 58 “The benefit specified in Articles 56 and 57 shall be granted throughout the contingency or until an old-age benefit becomes payable.” 41. Convention no. 128 of the ILO on Invalidity, Old-Age and Survivors’ Benefits entered into force on 1 November 1969 and has so far been ratified by sixteen countries, not including Hungary, of which ten are member States of the Council of Europe. Of the latter, six have accepted the obligations contained in Part II of the Convention, which provides as follows: Part II – Invalidity benefit Article 7 “Each Member for which this Part of this Convention is in force shall secure to the persons protected the provision of invalidity benefit in accordance with the following Articles of this Part.” Article 8 “The contingency covered shall include incapacity to engage in any gainful activity, to an extent prescribed, which incapacity is likely to be permanent or persists after the termination of a prescribed period of temporary or initial incapacity.” Article 9 “1. The persons protected shall comprise-- (a) all employees, including apprentices; or (b) prescribed classes of the economically active population, constituting not less than 75 per cent. of the whole economically active population; or (c) all residents, or residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 28. 2. Where a declaration made in virtue of Article 4 is in force, the persons protected shall comprise-- (a) prescribed classes of employees, constituting not less than 25 per cent. of all employees; (b) prescribed classes of employees in industrial undertakings, constituting not less than 50 per cent of all employees in industrial undertakings.” Article 10 “The invalidity benefit shall be a periodical payment calculated as follows: (a) where employees or classes of the economically active population are protected, in such a manner as to comply either with the requirements of Article 26 or with the requirements of Article 27; (b) where all residents or all residents whose means during the contingency do not exceed prescribed limits are protected, in such a manner as to comply with the requirements of Article 28.” Article 11 “1. The benefit specified in Article 10 shall, in a contingency covered, be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period which may be 15 years of contribution or employment, or ten years of residence; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of three years of contribution and in respect of whom, while he was of working age, the prescribed yearly average number or yearly number of contributions has been paid. 2. Where the invalidity benefit is conditional upon a minimum period of contribution, employment or residence, a reduced benefit shall be secured at least-- (a) to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of five years of contribution, employment or residence; or (b) where, in principle, all economically active persons are protected, to a person protected who has completed, prior to the contingency, in accordance with prescribed rules, a qualifying period of three years of contribution and in respect of whom, while he was of working age, half of the yearly average number or of the yearly number of contributions prescribed in accordance with subparagraph (b) of paragraph 1 of this Article has been paid. 3. The requirements of paragraph 1 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V but at a percentage of ten points lower than shown in the Schedule appended to that Part for the standard beneficiary concerned is secured at least to a person protected who has completed, in accordance with prescribed rules, five years of contribution, employment or residence. 4. A proportional reduction of the percentage indicated in the Schedule appended to Part V may be effected where the qualifying period for the benefit corresponding to the reduced percentage exceeds five years of contribution, employment or residence but is less than 15 years of contribution or employment or ten years of residence; a reduced benefit shall be payable in conformity with paragraph 2 of this Article. 5. The requirements of paragraphs 1 and 2 of this Article shall be deemed to be satisfied where a benefit calculated in conformity with the requirements of Part V is secured at least to a person protected who has completed, in accordance with prescribed rules, a qualifying period of contribution or employment which shall not be more than five years at a prescribed minimum age and may rise with advancing age to not more than a prescribed maximum number of years.” Article 12 “The benefit specified in Articles 10 and 11 shall be granted throughout the contingency or until an old-age benefit becomes payable.” Article 13 “1. Each Member for which this Part of this Convention is in force shall, under prescribed conditions-- (a) provide rehabilitation services which are designed to prepare a disabled person wherever possible for the resumption of his previous activity, or, if this is not possible, the most suitable alternative gainful activity, having regard to his aptitudes and capacity; and (b) take measures to further the placement of disabled persons in suitable employment. 2. Where a declaration made in virtue of Article 4 is in force, the Member may derogate from the provisions of paragraph 1 of this Article.” 42. The European Code of Social Security, ILO Convention no. 102 and ILO Convention no. 128 contain virtually identical provisions whereby, in situations where eligibility for invalidity benefit is conditional upon a minimum period of contribution or employment, a reduced invalidity benefit should at least be secured to persons who have completed a period of five years of contributions prior to the contingency (see Article 57 § 2 (a) of the European Code of Social Security and ILO Convention no. 102, as well as Article 11 § 2 (a) of ILO Convention no. 128). Twenty member States of the Council of Europe have accepted that undertaking in one or more of these instruments, but Hungary has not. 43. The World Health Organization’s International classification of functioning, disability and health (ICF), Annex 6 - Ethical guidelines for the use of ICF, states: “Social use of ICF information (8) ICF information should be used, to the greatest extent feasible, with the collaboration of individuals to enhance their choices and their control over their lives. (9) ICF information should be used towards the development of social policy and political change that seeks to enhance and support the participation of individuals. (10) ICF, and all information derived from its use, should not be employed to deny established rights or otherwise restrict legitimate entitlements to benefits for individuals or groups. (11) Individuals classed together under ICF may still differ in many ways. Laws and regulations that refer to ICF classifications should not assume more homogeneity than intended and should ensure that those whose levels of functioning are being classified are considered as individuals.” 44. The European system of integrated social protection statistics (ESSPROS) [4] classifies pensions, as a first-level breakdown, according to four different functions: disability, old age, survivors and unemployment. In 2012, of these, pensions relating to old age were the largest category, accounting for 77.3% of total expenditure and received by the same proportion of pension beneficiaries. Survivors’ pensions were the second largest category, accounting for just less than 11.3% of expenditure and received by 20.3% of beneficiaries, followed by disability pensions, accounting for 8.4% of expenditure and received by 12.3% of beneficiaries. Unemployment pensions were the smallest category (accounting for less than 0.3% of expenditure and of beneficiaries). THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 45. The applicant complained that she had lost her source of income, previously secured by the disability pension, because under the new system, in place as of 2012, she was no longer entitled to that, or a similar, benefit, although her health had not improved; and she submitted that this was a consequence of the amended legislation, which contained conditions she could not possibly fulfil. She relied on Article 6 of the Convention. 46. The Chamber found it appropriate to examine the applicant’s complaint under Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Grand Chamber agrees with this approach. It will therefore proceed in the same manner. 47. The Government contested the applicant’s argument. A. The Chamber judgment 48. Interpreting the Constitutional Court’s approach to the question, the Chamber was satisfied that the disability benefit, in the form of a pension or an allowance, flowed from an assertable right under the domestic law, in the sense that once the individual concerned had made the requisite contributions to the scheme, she would become entitled to it whenever her health situation so required. The Chamber observed that, during her employment, the applicant had contributed to the social-security system as required by the law. For the Chamber, those contributions resulted in a legitimate expectation that she would receive disability benefit, which expectation was formally recognised and honoured by the authorities when the applicant was granted a disability pension in 2001. The Chamber thus found Article 1 of Protocol No. 1 applicable to the case. 49. The Chamber further held that the recognised legitimate expectation, continuous in its legal nature, could not be considered extinguished by the fact that, under a new assessment methodology, the applicant’s disability was evaluated at a lower level in 2009. Her previously obtained possession of a disability pension had been replaced at that time with the recognised legitimate expectation of continued payment of a benefit, should the circumstances again so require. 50. In the Chamber’s view, the denial of the applicant’s eligibility for disability pension under the 2012 rules constituted an interference with her property rights as guaranteed by Article 1 of Protocol No. 1. As to the proportionality of that interference, the Chamber held that the applicant had sustained a drastic change, namely the total removal of her possibility to access disability benefits, which represented an excessive individual burden, with no possibility of remedying her situation once the new rules were enacted. For these reasons, the Chamber found that there had been a violation of Article 1 of Protocol No. 1. B. The parties’ submissions to the Grand Chamber 1. The applicant 51. The applicant was of the opinion that Article 1 of Protocol No. 1 was applicable to her case. She contended that between 2001 and 1 February 2010 she had had a possession, in the form of an existing pecuniary asset, specifically the disability pension. She had subsequently retained an assertable right to disability benefit for as long as she satisfied the criteria that were applicable in 2001; in other words, she had a legitimate expectation stemming from various sources. 52. In her view, the former Constitution had conferred on disabled persons an entitlement to social-welfare benefits as of right. According to the Constitutional Court’s interpretation, she, as a disabled individual, had an assertable right to some form of welfare benefit. At the hearing, she referred to decisions no. 37/2011 of the Hungarian Constitutional Court and no. 1 BvL 1/09 of the German Federal Constitutional Court, both confirming, in her view, the existence of a right to a social allowance for those in need, to the extent that this is required for basic subsistence. 53. Moreover, she relied on Article 12 § 2 of the European Social Charter, which contains a reference to ILO Convention no. 102, setting forth minimum standards in the field of social security, as well as on the United Nations Convention on the Rights of Persons with Disabilities. In her view, these texts, forming part of Hungary’s obligations under international law, also provided for an assertable right to disability benefit. 54. The applicant further argued that her right to disability pension was likewise assertable under the domestic law, in particular Act no. LXXXI of 1997 on Social-Security Pensions. Under the terms of that statute, she had obtained an assertable right to a disability benefit on the strength of having become disabled; in subsequently granting her the disability pension, the authorities had merely endorsed that right, already existing. 55. At the hearing, the applicant noted that the Government had accepted, if only for the period until her actual pension entitlement was terminated, the existence of a legitimate expectation flowing from the domestic law as in force when her eligibility was first established in 2001. 56. The applicant stressed that her health condition had not improved, as was stated in the expert opinion of 16 February 2011. Accordingly, she had not ceased to satisfy the relevant conditions; instead, it was the legal conditions which had changed. She noted that the Government had not produced any medical report or expert opinion clearly pointing to any improvement in her health. 57. The interference with her rights under Article 1 of Protocol No. 1 consisted not only in the dismissal of her request in 2012 but in a “continuing situation” of interference since the withdrawal of her disability pension in 2010, enshrined in the persistent denial of disability benefits, notwithstanding the periodic reviews undergone by her. As this rendered the six-month rule inapplicable, the applicant invited the Grand Chamber to examine the lawfulness of the termination of her disability pension in 2010. 58. Furthermore, the applicant argued that the disability pension had been withdrawn by way of quasi-retroactive legislation, without regard to acquired rights and on the ground of an assessment methodology of dubious legal value. The Government had failed to provide any truly legitimate aim pursued by the interference. Nor was it proportionate. Despite her continuous illness, her disability benefit had been unduly withdrawn and her subsequent requests had also been unduly denied. Rather than having to endure a reasonable and commensurate reduction in the level of benefits, she had been totally divested of her means of subsistence and had thus to bear an excessive individual burden. 59. Lastly, the applicant insisted, for the first time in her memorial to the Grand Chamber, on the need for a separate scrutiny of the facts of the case under Article 8 of the Convention should the Court be unable to find Article 1 of Protocol No. 1 applicable to her claim. 2. The Government 60. The Government argued that the application was inadmissible as being incompatible ratione materiae with the provisions of the Convention or its Protocols. The legitimate expectation to receive a disability benefit ‑ which admittedly had been generated by the domestic law in 2001 when the applicant’s eligibility had first been established – had been extinguished with the withdrawal of her entitlement in 2010. The Government added that, had the law not been amended, she would once again have become eligible when her health impairment was again assessed as exceeding the relevant threshold in 2012. The Constitution could not serve as a basis in national law for the legitimate expectation as argued by the applicant, since it merely laid down principles, whereas the actual eligibility rules for disability benefits were outlined in other legal provisions. 61. In the Government’s opinion, the broadening of the notion of legitimate expectation – as suggested by the Chamber judgment – would be wholly inconsistent with the Court’s case-law, place an excessive financial burden on the Contracting States and exert a “chilling effect” on national legislatures intent on reforming their social-security systems. The Convention did not guarantee any property rights independently from the domestic law of sovereign States. At the hearing, they cautioned against the stealthy creation of an independent European social law on an undefined basis, without the checks and balances that only a State legislature could guarantee. 62. According to the Government, some improvement in the applicant’s health had been substantiated by the expert opinion and the national court’s judgment (see paragraphs 15 and 16 above). This was also indicated by the fact that her 67% loss of working capacity under the pre-2008 system would have been equivalent to 54% health impairment under the new methodology; however, it had been assessed at 40% in 2009, which thus indicated a certain improvement in her health. The regular statutory reviews foreseen by the expert opinions prior to the withdrawal of the disability pension suggested only that the applicant’s ailments were susceptible to evolution, whereas the periodic reviews subsequent to that withdrawal had been requested by the applicant, rather than ordered by the authorities, and could therefore not be interpreted as proof of any subsisting legitimate expectation. 63. The Government further asserted that ex post facto legislation was typical of any social-security system, because of the lengthy and continuing nature of the social-security relationship between an insured person and the State. Applications for such benefits were normally not adjudicated on the basis of the law as in force at the beginning of the insurance relationship but rather under the law as it stood when the request was decided upon. Amendments enacted in the meanwhile to social-security laws might thus inevitably impose an individual burden on the insured. Any ex post facto legislation could only be validly disputed if the new law concerned those already in receipt of a benefit at the time of the entry into force of the retroactive law; however, this was not the case here. 64. The Government also argued that the State could not be held liable for the applicant’s failure to acquire the requisite insurance cover. Had she contributed to the scheme without interruption through social-security contributions while she was capable of doing so, she could most probably have attained the requisite number of days. To dispense the applicant from making the necessary contributions would be unfair and discriminatory towards those in a comparable situation who had diligently contributed to the social-security scheme. With regard to the actual aggregate of contributions made by the applicant, the Government submitted that this was a necessary but not a sufficient precondition, which was not capable of substituting for a valid national legal basis. 65. Given that social-welfare cover was continuously secured for those who were entitled to it on the date that the social-security scheme in question was amended, the Government submitted that the cover did not cease to exist, nor was it reduced as a result of that change. It would be unreasonable to expect the scheme to cover everyone who had once been granted such an allowance, irrespective of the loss of such status. This would place a heavy and excessive burden on the social-security schemes of the member States, and was not required by the principle of proportionality. 66. The Government lastly challenged the relevance of ILO Convention no. 102 on Social Security (Minimum Standards) and the International Classification of Functioning, Disability and Health (ICF) endorsed by the Member States of the World Health Organisation. With respect to the ILO Convention, the Government referred to the lack of a minimum level of adherence by European States; with regard to the ICF, they pointed to the absence of an “international-law” character. C. The third-party intervener’s arguments 67. The European Trade Union Confederation (ETUC) set out the international standards and case-law, as well as the practice in European States, pertaining to the right to social security in general and the right to invalidity benefits in particular. 68. It provided the Court with an analysis of Articles 22 and 25 (1) of the Universal Declaration of Human Rights; Article 9 of the International Covenant on Economic, Social and Cultural Rights together with the relevant general comments adopted by the Committee of Economic, Social and Cultural Rights; Article 28 of the UN Convention on the Rights of Persons with Disabilities; Conventions nos. 102 and 128 of the International Labour Organization; Article 12 of the European Social Charter; the European Code of Social Security; and Article 34 of the Charter of Fundamental Rights of the European Union. It also described the relevant practice of the European Union and Council of Europe Member States, based on the comparison of data available from the MISSOC and MISSCEO databases. 69. Against that background, it argued that it was demonstrated that the overwhelming majority, if not the totality, of Council of Europe Member States had agreed to provide protection against the risk of invalidity, by means either of international ratifications and/or national legislation within their social-security system; and that thus a European consensus had emerged in that field. This fact should warrant, as a consequence, an interpretation of Article 1 of Protocol No. 1 to the effect that its material scope should include the right to social security in general and the right to invalidity benefits in particular. D. The Grand Chamber’s assessment 1. The Government’s plea of inadmissibility 70. The Court observes that the Government’s plea of inadmissibility, arguing the complaint’s incompatibility ratione materiae with the Convention and the Protocols thereto, was raised for the first time before the Grand Chamber. 71. The Court sees no need to examine whether the Government are estopped under Rule 55 of the Rules of Court from making the said objection, since it finds in any event that it concerns a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, for instance, R.P. and Others v. the United Kingdom, no. 38245/08, § 47, 9 October 2012). It considers that, in the particular circumstances of the present case, the objection is so closely linked to the substance of the applicant’s complaint that it should be joined to the merits. 2. Applicability of Article 1 of Protocol No. 1 (a) General principles regarding the scope of the provision 72. The Court reiterates that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first rule, which is set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose. However, the rules are not “distinct” in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 217, ECHR 2015). 73. The concept of “possession” within the meaning of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to ownership of material goods and is independent from the formal classification in domestic law: 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; Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I; and Parrillo v. Italy [GC], no. 46470/11, § 211, ECHR 2015). 74. Although Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property (see Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011), in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I). 75. A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, §§ 69 and 73, ECHR 2002-VII). Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX). At the same time, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1 (see Beyeler, cited above, § 105). 76. In cases concerning Article 1 of Protocol No. 1, the issue that needs to be examined is normally whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by that provision (see Iatridis, cited above, § 54; Beyeler, cited above, § 100; and Parrillo, cited above, § 211). In applications concerning claims other than those relating to existing possessions, the idea behind this requirement has also been formulated in various other ways throughout the Court’s case-law. By way of example, in a number of cases the Court examined, respectively, whether the applicants had “a claim which was sufficiently established to be enforceable” (see Gratzinger and Gratzingerova, cited above, § 74); whether they demonstrated the existence of “an assertable right under domestic law to a welfare benefit” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2005-X); or whether the persons concerned satisfied the “legal conditions laid down in domestic law for the grant of any particular form of benefits” (see Richardson v. the United Kingdom (dec.), no. 26252/08, § 17, 10 April 2012). 77. In Kopecký, the Grand Chamber recapitulated the Court’s case-law on the notion of “legitimate expectation”. Following an analysis of different lines of cases concerning legitimate expectations, the Court concluded that its case-law did not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there was a “legitimate expectation” protected by Article 1 of Protocol No. 1. It took the view that “where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it” (see Kopecký, cited above, § 52). 78. One of the lines of case-law on “legitimate expectation” referred to above involved situations where the persons concerned were entitled to rely on the fact that a legal act, on the basis of which they had incurred financial obligations, would not be retrospectively invalidated to their detriment (see Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222; and Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003). In this line of cases, the “legitimate expectation” was thus based on a reasonably justified reliance on a legal act which had a sound legal basis and which bore on property rights (see Kopecký, cited above, § 47). Respect for such reliance follows from one aspect of the rule of law, which is inherent in all the Articles of the Convention and which implies, inter alia, that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by the Convention (see, as a recent authority, Karácsony and Others v. Hungary [GC], no. 42461/13, § 156, 17 May 2016, with further references). 79. Notwithstanding the diversity of the expressions in the case-law referring to the requirement of a domestic legal basis generating a proprietary interest, their general tenor can be summarised as follows: for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which, applying the principle enounced in paragraph 52 of Kopecký (rendered in paragraph 77 above) may not fall short of a sufficiently established, substantive proprietary interest under the national law. (b) The scope of Article 1 of Protocol No. 1 in regard to social benefits, in particular disability/invalidity benefits 80. In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social-security and welfare benefits. Many national legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right (see Stec and Others (dec.), cited above, § 51). The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to social and welfare benefits (see Stec and Others (dec.), cited above, § 54). The Court has previously addressed the issue of legitimate expectation in the context of social benefits on a number of occasions (see, for example, Kjartan Ásmundsson v. Iceland, no. 60669/00, § 44, ECHR 2004 ‑ IX, and Klein v. Austria, no. 57028/00, § 45, 3 March 2011. 81. In those legal systems where the national legislation requires mandatory contributions of employees to the social-security system, the legislation normally provides that those who have made adequate contributions and satisfied the statutory requirements of disability will receive some form of long-term disability benefit, on grounds of the principles of social solidarity and equivalency, for the period of the disability persisting or until the age of retirement. Such insurance schemes, which are typically mandatory, provide such protection, that is, the availability of benefits, for the entire period of insurance and on every occasion when the conditions of the insurance are satisfied. The relevant legal conditions are however subject to evolution. In this connection, it may be reiterated that in Gaygusuz v. Austria (16 September 1996, § 41, Reports of Judgments and Decisions 1996 ‑ IV) the Court found that the right to emergency assistance – a social benefit linked to the payment of contributions to the unemployment insurance fund – was, in so far as provided for in the applicable legislation, a pecuniary right for the purposes of Article 1 of Protocol No. 1. In Klein (cited above, § 43) it was noted that entitlement to a social benefit – in that instance, a pension payable from a lawyers’ pension scheme – was linked to the payment of contributions, and, when such contributions had been made, an award could not be denied to the person concerned. Contributions to a pension fund may thus, in certain circumstances and according to the domestic law, create a property right (see Kjartan Ásmundsson, cited above, § 39; Apostolakis v. Greece, no. 39574/07, §§ 28 and 35, 22 October 2009; Bellet, Huertas and Vialatte v. France (dec.), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999; Skórkiewicz v. Poland (dec.), no. 39860/98, 1 June 1999; and Moskal v. Poland, no. 10373/05, § 41, 15 September 2009). 82. The Court has also held that Article 1 of Protocol No. 1 imposes no restriction on the Contracting States’ 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 (see Sukhanov and Ilchenko v. Ukraine, nos. 68385/10 and 71378/10, §§ 35-39, 26 June 2014; Kolesnyk v. Ukraine (dec.), no. 57116/10, §§ 83, 89 and 91, 3 June 2014; and Fakas v. Ukraine (dec.), no. 4519/11, §§ 34, 37-43, 48, 3 June 2014). 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). 83. In certain circumstances the making of compulsory contributions, for example to a pension fund or a social insurance scheme, may create a property right protected by Article 1 of Protocol No. 1 even before the contributor fulfils all the conditions to actually receive the pension or other benefit. This is the case when there is a direct link between the level of contributions and the benefits awarded (see Stec and Others (dec.), cited above, § 43). The payment of contributions to a pension fund may in certain circumstances create a property right in a portion of such a fund and a modification of the pension rights under such a system could therefore in principle raise an issue under Article 1 of Protocol No. 1; even if it is assumed that Article 1 of Protocol No. 1 guarantees to persons who have paid contributions to a special insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount (see Müller v. Austria, no. 5849/72, Commission’s report of 1 October 1975, DR 3, p. 25, § 30, quoted in T. v. Sweden, no. 10671/83, Commission decision of 4 March 1985, DR 42, p. 229, at p. 232). 84. In this connection, it ought to be reiterated that Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, any right to a pension of a particular amount (see Kjartan Ásmundsson, cited above, § 39), although where the amount of a benefit is reduced or discontinued, this may constitute interference with possessions which requires to be justified (see Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 84, 25 October 2011; and Grudić v. Serbia, no. 31925/08, § 72, 17 April 2012). 85. In determining whether there has been an interference, the Court’s enquiry will focus on the domestic law in force at the time of the alleged interference (see, as an example from the law on compensation, Maurice v. France [GC], no. 11810/03, § 67, ECHR 2005 ‑ IX). 86. Where the person concerned did not satisfy (see Bellet, Huertas and Vialatte, cited above), or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 (see Rasmussen v. Poland, no. 38886/05, § 71, 28 April 2009) where the conditions had changed before the applicant became eligible for a specific benefit (see Richardson, cited above, § 17). Where the suspension or diminution of a pension was not due to any changes in the applicant’s own circumstances, but to changes in the law or its implementation, this may result in an interference with the rights under Article 1 of Protocol No. 1 (see Grudić, cited above, § 77). 87. In a number of cases the Court has been prepared to accept that the grant of a pension benefit, of which the applicant was subsequently divested on the grounds that the legal conditions for such a grant had not been fulfilled to begin with, could give rise to a possession for the purposes of the Protocol (see Moskal, cited above, § 45; and Antoni Lewandowski v. Poland, no. 38459/03, §§ 78 and 82, 2 October 2012). In another case it considered that the failure to fulfil a condition (namely the requirement of affiliation to a professional association), which under national law was a sufficient reason for forfeiture of a pension claim, did not lead to the conclusion that the applicant had no possession within the meaning of Article 1 of Protocol No. 1 (see Klein, cited above, § 46). Nor was the Court prevented from finding that an applicant, whose application for disabled adults allowance had been rejected on the grounds of his non-fulfilment of a statutory nationality condition, had a pecuniary right for the purposes of Article 1 of Protocol No. 1 (see Koua Poirrez v. France, no. 40892/98, §§ 37-42, ECHR 2003-X). By contrast, in yet a further case, the mere fact that the public authorities had tolerated the cumulating of two pensions and, where it was permitted, reimbursement of the contributions for one of them, did not give rise to a right protected by the Protocol (see Bellet, Huertas and Vialatte, cited above). 88. The fact that a person has entered into and forms part of a State social-security system (even if a compulsory one, as in the instant case) does not necessarily mean that that system cannot be changed, either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension (see, mutatis mutandis, Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 85-89, ECHR 2010; and Richardson, cited above, § 17). Indeed, the Court has accepted the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance, and also to the evolution of individual situations (see Wieczorek v. Poland, no. 18176/05, § 67, 8 December 2009). 89. Thus, as can be seen from the above case-law, where the domestic legal conditions for the grant of any particular form of benefits or pension have changed and where the person concerned no longer fully satisfies them due to the change in these conditions, a careful consideration of the individual circumstances of the case – in particular, the nature of the change in the requirement – may be warranted in order to verify the existence of a sufficiently established, substantive proprietary interest under the national law. Such are the demands of legal certainty and the rule of law, which belong to the core values imbuing the Convention. (c) Application of these principles to the present case 90. At the outset, the Grand Chamber notes that in the proceedings before it the applicant reverted to her argument made before the Chamber concerning the allegedly “continuing situation” of the interference originating in the discontinuation of her disability pension in 2010 (see paragraph 57 above). However, the Grand Chamber also notes that the Chamber considered that the Nyíregyháza Labour Court’s judgment of 1 April 2011 dismissing the applicant’s appeal was final, and that the application to the Strasbourg Court had been filed more than six months later. For that reason, the Chamber considered that it was prevented, pursuant to Article 35 § 1 of the Convention, from examining the procedure having led to the judgment of 1 April 2011 (see § 31 of the Chamber judgment). The Grand Chamber therefore has no jurisdiction to examine the proceedings that ended with the judgment of 1 April 2011. 91. The Grand Chamber will accordingly limit its examination to the case as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII), namely the applicant’s grievance resulting from the proceedings which began with the applicant’s request for a disability pension submitted on 20 February 2012 and which ended with the Nyíregyháza Administrative and Labour Court’s judgment of 20 June 2013, in which she was found ineligible for a disability pension under the 2012 rules on account of an insufficient period of social cover (see the description of the relevant proceedings in paragraphs 19 to 23 above). 92. However, in examining whether the outcome of the proceedings ending with the judgment of 20 June 2013 (see paragraph 23 above) was compatible with Article 1 of Protocol No. 1, the Court is not prevented from taking into account facts that occurred before and after the decision of 1 February 2010. 93. The Court notes that the system of disability allowances in question, both in its pre-2012 and its current form, essentially operated on the basis of two cumulative eligibility criteria: (i) a “health condition”, under which the benefit was due only to persons whose health and employment status so required, and (ii) a “contribution condition”, which required the fulfilment of a certain service period (as under the pre-2012 legislation) or, in essence, a period covered by social-security contributions (see paragraphs 28 and 29 above). 94. Thus, when the applicant completed the requisite service period (on a date not specified but by 2001 at the latest) she fulfilled the “contribution condition” as contained in the law in force at the time; and, when in 2001 her disability was established as exceeding the requisite level, the second criterion (the “health condition”) was also met. Accordingly, from 2001 until 2009/10, that is, for almost ten years, the applicant fulfilled all the conditions of eligibility for receiving a disability pension as of right (see Stec and Others (dec.), cited above, § 51, quoted in paragraph 80 above). The decision granting her a disability pension in accordance with the provisions of the 1997 Act and which formed the basis of her original entitlement could thus be regarded as representing an “existing possession” (see Kopecký, § 35(c)). Further, it seems undeniable that throughout the said period, she could, on the basis of the said “legal act”, entertain a “legitimate expectation” (ibid., § 47) of continuing to receive disability benefits should her disability persist to the requisite degree, there being no dispute as to the correct interpretation and application of domestic law (ibid., § 50). 95. However, the question arises whether the applicant’s legitimate expectation still existed on 1 January 2012, when the legislature changed the contribution criteria for the disability benefit, effectively invalidating the legal effect of the fact that she had already once fulfilled the “contribution condition”. Due to that legislative change, she was denied disability allowance on the ground that she was not eligible under the newly introduced contribution rules. This state of affairs was then reaffirmed in the applicant’s individual case, with authoritative force, by the final judgment of the Nyíregyháza Administrative and Labour Court, adopted on 20 June 2013 (see paragraph 23 above). It is only if her legitimate expectation continued to exist until 1 January 2012 that this legislative amendment could be considered to constitute an interference with the applicant’s possessions within the meaning of Article 1 of Protocol No. 1. 96. The parties’ positions diverged as to whether the applicant’s legitimate expectation to receive disability benefits whenever eligible (see paragraphs 51, 55 and 60 above) was extinguished after the discontinuation of her entitlement to the pension in 2010. Thus, the question to be determined by the Court is whether in 2012, when the applicant applied for disability allowance on the basis of the new finding that her health was sufficiently impaired, she still had a legitimate expectation, satisfying the criteria in its case-law, of receiving disability benefits. 97. In examining this question, the Court does not find it necessary to resolve the disagreement between the parties as to whether or not the applicant’s health had actually improved in the period at issue. It notes that, according to the expert opinion of 16 February 2011 submitted to the Labour Court (see paragraph 15 above), her condition had not significantly improved since 2007. Moreover, it was not in dispute between the parties that her medical situation would have made her eligible for the disability benefit in 2012 had the new law not entered into force earlier that year. Indeed the Government even confirmed that this would have been the case (see paragraphs 22 and 60 above). 98. The question whether the applicant still had a legitimate expectation, satisfying the criteria in the Court’s case-law, at the time of the entry into force of the new legislation in 2012 cannot be answered solely on the basis of that legislation. The underlying reason for such an assertion is that the principles which exclude the finding of an interference where the person concerned ceases to satisfy the legal conditions laid down in domestic law cannot be mechanically applied to situations where the complaint specifically concerns the very change in the legal conditions that is at issue. 99. Therefore, to limit the Court’s scrutiny to the question as to whether Article 1 of Protocol No. 1 is inapplicable on the sole ground of the absence of a domestic legal basis in 2012 would be tantamount to deliberately circumventing the crux of the applicant’s grievance, that crux being precisely the change in the law (see Lakićević and Others, cited above, § 70) annihilating the previously existing legal basis for her disability allowance. The change in the law effectively imposed on a certain category of insured persons, including the applicant, a condition whose advent had not been foreseeable during the relevant potential contributory period and which they could not possibly satisfy once the new legislation entered into force – a combination of elements which is ultimately difficult to reconcile with the rule of law. The Court points out at this juncture that the Convention is intended to guarantee rights that are “practical and effective” rather than theoretical and illusory (see Perdigão v. Portugal [GC], no. 24768/06, § 68, 16 November 2010). To hold that although a person has contributed to an insurance scheme and has satisfied its contributory requirement, he or she could be totally deprived of the legitimate expectation of eventual benefits would sit uncomfortably with this principle. 100. As mentioned above, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1 (see Beyeler, cited above, § 105). In following such an approach, the Court has declared Article 1 of Protocol No. 1 applicable in a number of cases where the applicants, by the time they lodged their application with the Court, no longer satisfied the conditions of entitlement laid down in national law for the benefit in question (see, for example, Kjartan Ásmundsson, cited above, § 40). 101. A closer examination is therefore warranted as to whether, at least until the alleged legislative interference in 2012, the applicant had a sufficiently established, substantive proprietary interest that qualified as a “possession” for the purposes of Article 1 of Protocol No. 1 (see paragraph 79 above). 102. In this connection, the Court observes in particular that during the intervening period between the discontinuation of the applicant’s disability pension in 2010 and the legislature’s introduction of the new contribution requirement in 2012, the applicant not only continued to be part of the social-security system but also continued to fulfil the relevant length-of-service requirement for disability benefits. Co-operating with the authorities at all times, and actively and continuously pursuing her disability claim, she underwent several periodic reassessments of her condition in the years 2011 and 2012; further such assessments were scheduled for November 2012, April and September 2014 and March 2015. 103. In its ruling of 1 April 2011, the Nyíregyháza Labour Court noted that the applicant had accrued 23 years and 71 days of service time (see paragraph 16 above), which, the Court observes, far exceeds the five-year minimum period (prior to contingency) warranting at least a reduced invalidity benefit under the European Code of Social Security and ILO Conventions nos. 102 and 128 (see paragraph 42 above). Furthermore, whilst approving the withdrawal of the applicant’s disability pension as of 1 February 2010, the Labour Court expressly confirmed that a new medical assessment could take place in 2012 and drew her attention to the possibility of making a renewed application should her health deteriorate (see paragraph 16 above). 104. Moreover, although for a while her degree of disability was considered somewhat below the minimum level required (40% in December 2009 and April 2011, then 45% in September 2011, see paragraphs 12 to 17 above), in December 2011, that is, before the end of the said period, it reached 50%, as it did again in February 2012. It was undisputed that this disability level would have qualified the applicant for a disability benefit in February 2012 had it not been for the new retroactive contribution requirement, which was not met by her. In the meantime, on 13 December 2011, she had been recommended for rehabilitation and for the accompanying allowance – a type of benefit closely related to disability pension (see paragraph 17 above) and introduced to take the place of the disability pension for individuals capable of being rehabilitated. However, the authorities did not implement this recommendation. Had they done so, the applicant might have been in receipt of a benefit on 31 December 2011, which would have altered her situation under the new law. 105. The Court reiterates that the applicant contributed to the insurance scheme on a mandatory basis and satisfied the statutory requirements of eligibility for disability benefits. The Court has already noted that contributions to a pension fund may, in certain circumstances and according to the domestic law, create a property right for the purposes of Article 1 of Protocol No. 1 (see paragraphs 81 and 83 above) and finds that such circumstances exist in the present case, in view of the fact that her contribution was recognised as sufficient at the latest on 1 April 2001 (see paragraph 11 above). She could therefore reasonably rely on the promise of the law that she would be entitled to disability benefits whenever she satisfied the applicable health-related conditions. 106. In these circumstances, the Court does not consider that the reduction in the applicant’s disability degree in 2009, the resultant discontinuation of her disability pension in 2010 or any other factors pertaining to her pension status during the intervening period until 31 December 2011 were sufficient to extinguish her legitimate expectation that she would receive disability benefits should her disability again attain the requisite degree. On the contrary, the measures taken by the authorities and the judgment of 1 April 2011 in particular indicate that the authorities acted in full recognition of the applicant’s insured status, and therefore the applicant could have relied in a reasonably justified manner on the applicable legislation and had a legitimate expectation of receiving a disability benefit should the statutory conditions be satisfied. As the Government admit, but for the new conditions of the 2012 Act she would have qualified for disability allowance in 2013. 107. In short, between 2010 and 31 December 2011 the applicant, while not in receipt of a pension, continued to entertain a “legitimate expectation”, covered by the notion of “possession” in Article 1 of Protocol No. 1. 108. When, following the entry into force of the new law and relying on her newly re-assessed and sufficiently impaired health, the applicant applied for disability allowance in 2012, she did no more, in the Court’s view, than seek to avail herself once again of an existing legitimate expectation to be provided with a social-security benefit, rather than pursuing the “acquisition” of a “possession”. It was not in dispute between the parties that the applicant would have been eligible for the disability allowance from the date on which her health impairment was found in 2012 to have exceeded the relevant threshold, had the new law not entered into force earlier that year (see paragraphs 22 and 60 above). 109. The interference in question, which resulted from the entry into force of the new law as from 2012, consisted in a complete refusal of the applicant’s request for the disability allowance; in other words, her right to derive benefits from the social-insurance scheme in question was infringed in a manner that resulted in the impairment of her pension rights. 110. These elements are sufficient for the Court to find that Article 1 of Protocol No. 1 is applicable in the present case. The Government’s preliminary objection concerning incompatibility ratione materiae with the provisions of the Convention must thus be dismissed. 111. In view of this conclusion, the Court finds that it is not warranted to address the parties’ further arguments intended to elucidate the nature of the disputed entitlement as it is described by various international texts. 3. Compliance with Article 1 of Protocol No. 1 (a) General principles 112. An essential condition for an interference with a right protected by Article 1 of Protocol No. 1 to be deemed compatible with this provision is that it should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Iatridis, cited above, § 58; Wieczorek, cited above, § 58; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012). 113. Moreover, any interference by a public authority with the peaceful enjoyment of possessions can only be justified if it serves a legitimate public (or general) interest. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures interfering with the peaceful enjoyment of possessions. The notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning social-insurance benefits will commonly involve consideration of economic and social issues. The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see, mutatis mutandis, The former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII; Wieczorek, cited above, § 59; Frimu and Others v. Romania (dec.), nos. 45312/11, 45581/11, 45583/11, 45587/1 and 45588/11, § 40, 7 February 2012; Panfile v. Roumania (dec.), no. 13902/11, 20 March 2012, and Gogitidze and Others v. Georgia, no. 36862/05, § 96, 12 May 2015). 114. This is particularly so, for instance, when passing laws in the context of a change of political and economic regime (see Valkov and Others, cited above, § 91; the adoption of policies to protect the public purse (see N.K.M. v. Hungary, no. 66529/11, §§ 49 and 61, 14 May 2013); or to reallocate funds (see Savickas v. Lithuania and Others (dec.), no. 66365/09, 15 October 2013); or of austerity measures prompted by a major economic crisis (see Koufaki and ADEDY v. Greece (dec.), nos. 57665/12 and 57657/12, §§ 37 and 39, 7 May 2013; see also da Conceição Mateus and Santos Januário v. Portugal (dec.) nos. 62235/12 and 57725/12, § 22, 8 October 2013; da Silva Carvalho Rico v. Portugal (dec.), § 37, no. 13341/14, 1 September 2015). 115. In addition, Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81‑94, ECHR 2005‑VI). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52; Kjartan Ásmundsson, cited above, § 45; Sargsyan, cited above, § 241; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 66). 116. In considering whether the interference imposed an excessive individual burden the Court will have regard to the particular context in which the issue arises, namely that of a social-security scheme. Such schemes are an expression of a society’s solidarity with its vulnerable members (see Maggio and Others, § 61, and Stefanetti and Others, § 55, both cited above, and also, mutatis mutandis, Goudswaard-Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005-XI). 117. The Court reiterates that the deprivation of the entirety of a pension is likely to breach the provisions of Article 1 of Protocol No. 1 and that, conversely, reasonable reductions to a pension or related benefits are likely not to do so. However, the fair balance test cannot be based solely on the amount or percentage of the reduction suffered, in the abstract. In a number of cases the Court has endeavoured to assess all the relevant elements against the specific background (see Stefanetti and Others, cited above, § 59, with examples and further references; see also Domalewski, v. Poland (dec.), no. 34610/97, ECHR 1999 ‑ V). In so doing, the Court has attached importance to such factors as the discriminatory nature of the loss of entitlement (see Kjartan Ásmundsson, cited above, § 43); the absence of transitional measures (see Moskal, cited above, § 74, where the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income, and with poor prospects of being able to adapt to the change); the arbitrariness of the condition (see Klein, cited above, § 46), as well as the applicant’s good faith (see Moskal, cited above, § 44). 118. An important consideration is whether the applicant’s right to derive benefits from the social-insurance scheme in question has been infringed in a manner resulting in the impairment of the essence of his or her pension rights (see Domalewski, cited above; Kjartan Ásmundsson, cited above, § 39; Wieczorek, cited above, § 57; Rasmussen, cited above, § 75; Valkov and Others, cited above, §§ 91 and 97; Maggio and Others, cited above, § 63; and Stefanetti and Others, cited above, § 55). (b) Application of these principles to the present case 119. In the present case the parties differed as to whether the interference with the applicant’s property right was “subject to the conditions provided for by law” within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 and whether it was possible to identify a legitimate aim pursued by it. 120. The Court notes that the interference consisted in the specific legislation introduced as of 2012 and in its application in the instant case. It is therefore satisfied that the interference complied with the requirement of lawfulness contained in the above provision. 121. The Court further considers that the interference complained of pursued the communal interest in protecting the public purse, by means of rationalising the system of disability-related social-security benefits. 122. As to the proportionality of the interference, the respondent Government offered little comment. 123. The Court notes that the applicant was subjected to a complete deprivation of any entitlements, rather than to a commensurate reduction in her benefits, such as by, for example, calculating an allowance pro rata on the basis of the existing and missing days of social cover (see Kjartan Ásmundsson, §§ 44-45; Lakićević, § 72; and, a contrario, Richardson, § 24; and Wieczorek, § 71, all cited above), in view of the fact that her social-security cover was only 148 days short of the required length. This element gains particular importance in view of the fact that the applicant did not have any other significant income on which to subsist (see paragraph 25 above; compare also Kjartan Ásmundsson, cited above, § 44) and that she evidently had difficulties in pursuing gainful employment and belonged to the vulnerable group of disabled persons (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010). The Court is indeed mindful of the special characteristics of the type of pension at issue. Although, as mentioned above, the applicant was recommended for rehabilitation in December 2011, rehabilitation was not undertaken and she was not offered the related allowance (see paragraphs 17 and 104 above). 124. In the light of the above considerations, the Court is of the view that the disputed measure, albeit aimed at protecting the public purse by overhauling and rationalising the scheme of disability benefits, consisted in legislation which, in the circumstances, failed to strike a fair balance between the interests at stake. Such considerations cannot, in the Court’s view, justify legislating with retrospective effect and without transitional measures corresponding to the particular situation (see Moskal, cited above, §§ 74 and 76; see also the ruling of the Court of Justice of the European Union referred to in Baka v. Hungary [GC], no. 20261/12, § 69, 23 June 2016), entailing as it did the consequence of depriving the applicant of her legitimate expectation that she would receive disability benefits. Such a fundamental interference with the applicant’s rights is inconsistent with preserving a fair balance between the interests at stake (see, mutatis mutandis, Pressos Compania Naviera S.A. and Others, cited above, § 43). 125. It should also be noted that the applicant was deprived of entitlement to any allowance, despite the fact that there is no indication that she failed to act in good faith at all times, to co-operate with the authorities or to make any relevant claims or representations (compare Wieczorek, cited above, § 69 in fine ). 126. The Court thus considers that there was no reasonable relation of proportionality between the aim pursued and the means applied. It therefore finds that, notwithstanding the State’s wide margin of appreciation in this field, the applicant had to bear an excessive individual burden (see Kjartan Ásmundsson, cited above, § 45), amounting to a violation of her rights under Article 1 of Protocol No. 1. 127. Having reached this conclusion, there is no cause for the Court to consider the applicant’s alternative argument based on Article 8 of the Convention (see paragraph 59 above). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 128. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 129. The applicant claimed 13,185 euros (EUR) in respect of pecuniary damage, which amount corresponds to 68 months’ outstanding disability benefit. Moreover, she claimed EUR 6,000 in non-pecuniary damage. 130. The Government contested these claims. 131. The Court cannot speculate on the amount of disability benefit which would have been disbursed to the applicant had the violation not occurred. It therefore awards her a lump sum of EUR 10,000 in respect of the pecuniary damage sustained. Moreover, it considers that she must have suffered some non-pecuniary damage on account of the distress suffered and awards her, on the basis of equity, EUR 5,000 under this head. B. Costs and expenses 132. The applicant also claimed EUR 19,220, inclusive of value-added tax (VAT), for the costs and expenses incurred before the Court. This sum corresponds to 121.5 hours of legal work and 19.9 hours of paralegal work, billed by her lawyers and their staff at hourly fees of EUR 150 (inclusive of VAT) for lawyers’ fees and EUR 50 (inclusive of VAT) for the paralegals. 133. The Government contested this claim. 134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the 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 covering costs under all heads, less EUR 2,204.95, corresponding to the total amounts paid to the applicant’s lawyers under the Council of Europe’s legal-aid scheme with regard to the procedures before the Chamber and the Grand Chamber; the sum to be awarded is thus EUR 12,795.05. C. Default interest 135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Grand Chamber held that there had been a violation of Article 1 (protection of property) of Protocol No. 1. It found in particular that Article 1 of Protocol 1 had applied to the applicant’s case, because she had had a legitimate expectation that she would receive the pension, if she had satisfied the criteria set out in the old legislation. The refusal to grant her the benefit had been in accordance with the law (as it arose from the new legislation), and had been in pursuit of a legitimate purpose (saving public funds). However, it had not been proportionate: in particular, because it had involved the complete deprivation of a vulnerable person’s only significant source of income, resulting from retrospectively effective legislation that had contained no transitional arrangements applicable to the applicant’s case. |
410 | Deprivation of liberty / Restriction on the freedom of movement | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Federal Code of Administrative Offences (CAO) 1. Liability for breaching migration regulations 23. Article 18.8 of the CAO punishes various violations of the migration legislation. Until August 2013, Article 18.8 § 1 of the CAO provided that a foreign national who infringed the residence regulations of the Russian Federation, including by entering or living on the territory without a valid document, by non-compliance with the established procedure for residence registration or by failing to leave Russia after expiry of an authorised period of stay, would be liable to an administrative fine with or without administrative removal. 24. In July 2013 paragraph 1.1 was introduced into Article 18.8 to make the following actions or omissions punishable from August 2013 by both a fine and administrative removal from Russia: the absence of documents confirming the right to stay or reside in Russia; and the failure to leave Russia after expiry of an authorised period of stay. 25. Article 18.10 provided at the material time that a fine with or without administrative removal could be imposed on a foreign national for unlawful employment activities in Russia. 26. Pursuant to Article 31.2, a judgment on the merits in respect of an administrative-offence charge is enforceable after it has acquired legal force. 27. Article 30.12 provides that first-instance and appeal judgments which have become final can be challenged by way of review. 28. Pursuant to Article 31.6, a judge shall suspend enforcement of his or her judgment in the administrative - offence case where a prosecutor or another public official has lodged a request for review of this judgment under Article 30.12, or in other situations prescribed by the CAO. No suspension is possible if review is being sought by a defendant (Ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia, paragraph 37). 29. Article 3.10 of the CAO provides that a judge is empowered to require detention of a foreigner in a special detention facility with a view to enforcing the penalty of forcible removal. 2. Examination of risk to life and physical integrity in CAO cases 30. The respondent Government submitted several court decisions in support of their argument that the courts in CAO cases were empowered to take cognisance of an argument based on the risk of ill-treatment in order to oppose a penalty of administrative removal: - Acting as the reviewing court in a CAO case (apparently concerning offences committed in or before April 2013 when the penalty of removal was not mandatory but could be imposed as an additional sentence together with a fine ), the Supreme Court of Russia issued decision no. 19-AD13-6 of 13 December 2013. It reads as follows: “Article 7 of the International Covenant on Civil and Political Rights (as interpreted by the United Nations Human Rights Committee) and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provide that a person should not be extradited where there are substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment. Under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (as interpreted by the European Court of Human Rights), inhuman treatment or punishment includes treatment that is usually of a premeditated nature, lasts for hours or where, as a result of such mistreatment or punishment, one has sustained real physical harm or profound physical or mental suffering ... Pursuant to Article 3 of the Convention against Torture, when assessing the presence or absence of the above circumstances, it is necessary to take into account the general situation regarding observance of human rights in the requesting State and the specific circumstances of the case, which taken together may confirm the presence of serious grounds to believe that the person runs a risk of being subjected to the above-mentioned mistreatment or punishment. In this connection, courts may take into account the person ’ s testimony, witness statements, the notes issued by the Russian Ministry of Foreign Affairs concerning the respect for human rights in the requesting State, that State ’ s assurances, as well as reports and other documents issued in respect of that State by international inter ‑ governmental organisations ... A similar position has been expressed by the Plenary Supreme Court of Russia in its ruling no. 11 of 14 June 2012 concerning extradition cases ... [The foreign national] explained to the first-instance court that he had not returned to his country in due time on account of the ongoing armed conflict there. The case file contains a letter from the Human Rights Ombudsman of the Stavropol Region who indicates that there is an ongoing armed conflict in the country, and that the socio-economic situation there is extremely difficult. Furthermore, the case file contains a letter from the Deputy Chief Bailiff of the Russian Federation dated 30 August 2013; he indicates that all departures for this country are prohibited. ... The court decision should be amended by way of excluding the penalty of forcible removal from Russia.” - An undated judgment from the Moscow Regional Court reads as follows: “The recommendations issued in October 2013 by the UNHCR indicate that the situation in Syria is likely to remain uncertain in the nearest future. The UNHCR welcomes the fact that certain countries have taken measures with a view to suspending enforcement of removal measures to Syria, including for foreigners who had been refused asylum. Such measures should remain in force until further notice. [The foreign national] specified that his town of habitual residence had been taken over by terrorists; he was unable to maintain contact with his next of kin. He had not left Russia because he feared for his life on account of the war in Syria; he had lodged an application for refugee status in Russia ... The court decision should be amended by way of excluding the penalty of supervised removal ... ” - By a judgment of 13 February 2014 the Leningrad Regional Court held in similar terms as above. It also stated : “[The Syrian national] has lodged an application for temporary asylum. .. The person who has been granted temporary asylum cannot be returned to his country against his will (section 12 of the Refugees Act). The relevant proceedings were pending at the time of the proceedings in the CAO case ... The impugned judgment should be amended by way of excluding the penalty of compulsory removal.” B. Legislation on refugee status and temporary asylum 31. Federal Law no. 4528-1 of 19 February 1993 (“the Refugees Act”) contains rules concerning two procedures for the protection of foreigners: a refugee status procedure and temporary asylum procedure. 1. Refugee status procedure 32. Section 1(1) of the Refugees Act defines a refugee as a person who is not a Russian national and who has sufficiently justified grounds to fear becoming a victim of persecution on grounds of his race, religion, citizenship, membership of a social group or political views. 33. Pursuant to section 4(1) and (7) of the Refugees Act, a foreigner who has lodged an application for refugee status is provided with a certificate, which is the document that confirms the identity of the person seeking refugee status and permits a request for seeking admission to a temporary stay centre. 34. The Refugees Act provides the following safeguards to foreigners claiming refugee status in Russia: “ Section 10. Safeguards for personal rights 1. A person who is seeking refugee status, already has it or no longer has it cannot be returned against his will to the country of his nationality or habitual residence while the circumstances listed in section 1(1) of the Act persist in that country. 2. Decisions and actions (inaction) by public authorities in relation to enforcement of the Act are amenable to challenge before a higher authority or a court. 3. Complaints should be lodged within the following time-limit: ( 1) one month of receiving written notification about the decision that has been taken or one month after a complaint has been lodged where no written reply to it is received; ( 2) three months of the date on which the person learnt about the refusal of refugee status. 4. Prior to the decision on the complaint, the applicant and his family members have rights and obligations as listed in sections 6 and 8 of the Act, in so far as these do not contradict their legal status. 5. Having received notification on the inadmissibility of the refugee application or on its refusal and having used the right to challenge the above decisions, the person must leave Russia together with his family members within three days of receipt of the notification, where there are no other legal grounds for remaining in Russia ... Section 13. Removal (deportation) from Russia 1. If, having received the notification on the inadmissibility of the application for refugee status or on its refusal, the foreigner does not challenge those decisions while refusing to leave Russia, he must be removed (deported) together with his family members ... 2. If, having challenged the above decisions the foreigner has no other legal grounds for remaining in Russia while refusing to leave it, he must be removed (deported) ... ” 2. Temporary asylum procedure 35. Under section 1 of the Refugees Act, temporary asylum is defined as a possibility for a foreigner to reside in Russia on a temporary basis in accordance with section 12 of the Refugees Act, which reads as follows: “1. Temporary asylum is granted in accordance with the procedure established by the Government of the Russian Federation ... 2. Temporary asylum may be granted to a foreigner if he: (1) has met the grounds for refugee status but has limited his application to a request for leave to remain in Russia on a temporary basis; (2) has not met the grounds for refugee status as listed in the Act but humanitarian considerations prevent his removal from Russia. ... 4. ... A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality (his previous habitual residence). ... 5. Temporary asylum is no longer valid: (1) when the circumstances giving rise to it have been removed; (2) if the person has acquired a right to reside permanently in Russia or has acquired Russian citizenship or another nationality; (3) if the person has left Russia for residence elsewhere. 6. Temporary asylum shall be revoked if the foreigner: (1) has been convicted by a final judgment for a criminal offence committed in Russia; (2) has provided false information or documents that then gave rise to the granting of temporary asylum, or has otherwise violated the present Act; (3) has been prosecuted for an administrative offence relating to drug trafficking ... 7. If the foreigner no longer has temporary asylum for one of the reasons listed in subsections 5(2)-(3) and 6(3) above and has no other grounds for remaining in Russia and has been requested to leave Russia, he or she must leave the country within a month.” 36. The procedure for examining applications for temporary asylum was prescribed by the Russian Government in decree no. 274 of 9 April 2001. Temporary asylum is granted if there are grounds for recognising a foreigner as a refugee or if there are humanitarian grounds requiring the temporary presence of the person in Russia (for instance, on account of his or her state of health) until such grounds no longer exist or the legal status of the person has changed. Temporary asylum is granted for a period of one year; it can be extended each year for the same period at the foreigner ’ s request. A person who has been granted temporary asylum cannot be returned, against his or her will, to the country of nationality or previous residence. 37. According to decree no. 274, pending examination of an application for temporary asylum a foreigner is given a certificate indicating that his or her application is being examined ( § 4); such certificate confirms the legality of a foreigner ’ s presence in Russia during the period when the application is being examined or when a refusal of temporary asylum is being challenged ( § 5). 38. The Constitutional Court of Russia has held that temporary asylum should be understood as an extraordinary and complementary protective measure; while neither the Refugees Act nor Government decree no. 274 contains an exhaustive list of circumstances that may disclose “ humanitarian considerations” and be a sufficient ground for granting temporary asylum in Russia, the relevant public authority does not enjoy unfettered discretion in deciding on temporary asylum; such a decision should take account of the legal nature and intended use of that procedure and the constitutional principle recognising human rights and freedoms as the highest value, as enshrined in Article 2 of the Constitution (decision no. 1317-O-P of 30 September 2010). C. Code of Administrative Procedure 39. Since September 2015 the Code of Administrative Procedure (CAP ) has replaced the Code of Civil Procedure as regards various disputes involving public authorities. 40. Chapter 7 of the CAP provides for “measures of preliminary protection”. Following introduction of a case against the State, the claimant may seek measures of preliminary protection. A court is empowered to grant such measures if: ( 1) prior to resolving the case there is a manifest threat of a violation of the claimant ’ s rights, freedoms and legitimate interests; or ( 2) the protection of the claimant ’ s rights, freedoms and legitimate interests will be rendered impossible or difficult without such measures. 41. Article 85 of the CAP empowers a court to suspend the impugned administrative decision, prohibit specific actions or issue other measures of preliminary protection. Such measures must be related to the impugned claim pending before the court and must be proportionate to such claim. III. OTHER RELEVANT MATERIAL A. UNHCR documents 42. The 2011 UNHCR Resettlement Handbook states that the 1951 Convention does not require that a person ’ s departure from his/her country of origin or habitual residence was caused by a well ‑ founded fear of persecution. Grounds for recognition as a refugee may arise when the individual concerned is already out of the country – in such situations, the person may become a refugee while being in the host country ( sur place ). 43. The 2011 UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees states as follows: “ 164. Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol. They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Geneva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts. 165. However, foreign invasion or occupation of all or part of a country can result ‑ and occasionally has resulted – in persecution for one or more of the reasons enumerated in the 1951 Convention. In such cases, refugee status will depend upon whether the applicant is able to show that he has a ‘ well-founded fear of being persecuted ’ in the occupied territory and, in addition, upon whether or not he is able to avail himself of the protection of his government, or of a protecting power whose duty it is to safeguard the interests of his country during the armed conflict, and whether such protection can be considered to be effective.” 44. The Court has also had regard to the UNHCR Guidelines on International Protection No. 12: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions (2 December 2016, HCR/GIP/16/12, in particular paragraphs 10, 17-19, 22 and 32-33); the UNHCR Guidelines on Temporary Protection or Stay Arrangements, February 2014. B. Reports on Syria 45. According to the Russian Official Statistics Agency, as of 1 January 2013/2014/2015/2016 there were 52/ 1,158/ 1,924/ 1,302 Syrians nationals having temporary asylum in Russia respectively; in 2010-16 two Syrian nationals (in total or per year) received refugee status. 46. For a number of reports concerning the situation in Syria before and during 2015, see L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, §§ 76-81, 15 October 2015. 47. The Court has had regard to more recent reports and documents such as : - UNHCR ’ s Report “International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic. Update IV” (HCR/PC/SYR/01, November 2015): “2. Nearly all parts of Syria are embroiled in violence, which is playing out between different actors in partially overlapping conflicts and increasingly involves different regional and international actors. The country is deeply fractured as parties to the conflict, including Syrian military forces, the group “Islamic State of Iraq and Al ‑ Sham” (hereafter ISIS), anti-government armed groups, and Kurdish forces (People ’ s Protection Units, YPG), exercise control and influence in different parts of the country. As international efforts to end the conflict in Syria have yet to yield results, the conflict continues unabated with devastating consequences for the Syrian population, including rising civilian casualties, large-scale displacement inside and outside the country, and an unprecedented humanitarian crisis. Tenuous local ceasefires have been brokered in some areas between government and anti ‑ government forces, resulting in temporary de-escalations of fighting at the local level. ... 7. The number of persons killed as a result of the conflict since its start in 2011 is estimated to range between 145,000 and over 250,000. The greatest number of casualties has been recorded in the governorate of Rural Damascus, followed by Aleppo, Homs, Idlib, Dera ’ a and Hama governorates. While men (both fighters and civilians) account for the highest number of deaths, women and children are reported to account for one quarter of all civilian deaths. As a result of the conflict, the deterioration of Syria ’ s healthcare system has reportedly led to hundreds of thousands of ordinarily preventable deaths from chronic diseases, premature deaths due to normally nonfatal infectious diseases, neonatal problems and malnutrition. In addition, over one million people have reportedly been wounded as a direct result of the conflict, often leading to long-term disabilities, while many more are suffering from the psychological consequences of having been witness to violence, the loss of family members, displacement and deprivation. ... 17. A particular and deepening feature of the conflict is that different parties to the conflict frequently impute a political opinion to larger groups of people, including families, tribes, religious or ethnic groups or whole towns, villages or neighbourhoods, by association. As such, members of a larger entity, without individually being singled out, become the targets for repercussions by different actors, including government forces, ISIS, and anti-government armed groups, for reason of real or perceived support to another party to the conflict. According to consistent reports, whole communities which are perceived to be holding a particular political opinion or affiliation in relation to the conflict are targeted by aerial bombardments, shelling, siege tactics, suicide attacks and car bombs, arbitrary arrest, hostage-taking, torture, rape and other forms of sexual violence, and extra-judicial executions. The perception of sharing a political opinion or affiliation in relation to the conflict is often based on little more than an individual ’ s physical presence in a particular area (or the fact that he/she originates from a particular area), or his/her ethnic, religious or tribal background. The risk of being harmed is serious and real, and in no way diminished by the fact that the person concerned may not be targeted on an individual basis. ... 27. With the conflict in Syria in its fifth year, the humanitarian situation continues to deteriorate rapidly. The total number of people in need of humanitarian assistance inside Syria has reached 13.5 million ... 37. In exceptional cases in which the 1951 Convention inclusion criteria may not be met, consideration needs to be given to broader refugee criteria elaborated in regional refugee instruments, or other forms of international protection, including subsidiary protection, or protection from refoulement derived from universal or regional human rights norms, or based on national legislative standards. ... ” - United Kingdom: Home Office, Country Information and Guidance - Syria: the Syrian Civil War, 19 August 2016: “3.1.1 Caselaw has established that it is likely that a failed asylum seeker or forced returnee would, in general, on return to Syria face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. It noted that the position might be otherwise for someone perceived as a supporter of the Assad regime. 3.1.2 However, since this caselaw was promulgated in 2012, the situation is now such that actual or perceived Assad supporters may have a well-founded fear of persecution, depending on where they are. 3.1.3 The humanitarian crisis, which continues to deteriorate, is such that for most returnees removal would breach Article 3 of the ECHR. 3.1.4 The level of indiscriminate violence in the main cities and areas of fighting in Syria is at such a level that substantial grounds exist for believing that a person, solely by being present there for any length of time, faces a real risk of harm which threatens their life or person ... 3.1.5 If a person faces a well-founded fear of persecution, they are unlikely to be able to obtain protection from the authorities. 3.1.6 It is unlikely that a person will be able to reasonably internally relocate to another part of the country, because of the highly limited ability to move, and move safely, from one part of Syria to another, and the unpredictability and scale of violence, and the humanitarian situation faced by the displaced, in areas of proposed relocation ... ” - On 30 October 2016 the United Nations Special Envoy for Syria mentioned the high number of rockets indiscriminately launched by armed opposition groups on civilian suburbs of western Aleppo in the last forty ‑ eight hours. Credible reports quoting sources on the ground indicated that scores of civilians in west Aleppo had been killed, including several children, and hundreds wounded due to relentless and indiscriminate attacks from armed opposition groups. The Special Envoy reiterated the Secretary General ’ s condemnation of recent attacks on schools on both sides, as well as the use of heavy airpower on civilian areas that characterised the fighting in Aleppo. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION 48. The applicant complained that his administrative removal from Russia to Syria would have entailed in 2015 and would still entail at present a violation of Articles 2 and 3 of the Convention, which read as follows: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 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.” A. The parties ’ submissions 1. The Government 49. The Government argued, in substance, that the applicant was responsible for the situation in which he found himself. Having arrived in Russia in October 2011 with a visa which he knew would expire, he had overstayed his visa and had started to work illegally. In 2012 and 2013 he had taken no steps to regularise his presence in Russia by way of ordinary procedures, applying for a new visa, a temporary residence permit or Russian citizenship. Before being convicted in 2013 under Article 18.10 of the CAO he could have pursued extraordinary procedures, for example by applying for refugee status or temporary asylum. At the time, the applicant had not been in detention and had been free to use legal assistance and translation services, if necessary, in order to legalise his stay in Russia, or to leave Russia for other countries, probably offering better opportunities in his situation. 50. The Government submitted that the applicant ’ s appeal against the first-instance judgment in the administrative offence case and his delayed application for temporary asylum could not be viewed as proper exhaustion of domestic remedies in the particular circumstances of the case. 2. The applicant 51. The applicant acknowledged that he had violated the migration legislation. However, such violation did not, per se, mean that his grievances falling within the scope of Articles 2 and 3 of the Convention were inadmissible. It was both unreasonable and irrelevant (for instance, on account of Directive 2005/85/EU of 1 December 2005) to dismiss an asylum application as inadmissible for the sole reason that it had been lodged belatedly. Russian law required an immediate application for refugee status only from those who crossed or attempted to cross the border illegally. The applicant had arrived in Russia legally in 2011. Having arrived in Russia in October 2011, the applicant had become a refugee “ sur place ” on account of the intensified hostilities in Syria in 2013-15. The applicant had raised the pertinent arguments before the national authorities, namely in the temporary asylum procedure (see paragraphs 15 and 22 above). It was incumbent on the authorities to dispel any doubts that his return to Syria would not be safe. B. The Court ’ s assessment 1. Admissibility 52. The Government argued in substance that the applicant should have taken in due time – that is, long before 2015 – measures to regularise his stay in Russia. In particular, he should have applied for a new visa, a temporary residence permit or Russian citizenship. He could also have applied for refugee status or temporary asylum. The Government claimed that the applicant ’ s appeal against the ruling on his administrative removal and his delayed application for temporary asylum could not be viewed as exhaustion of domestic remedies in the particular circumstances of the case. 53. The Court observes that the Government ’ s exhaustion claim is that the applicant could have avoided the removal order and its consequences if he had regularised his status before his business visa expired. However, the fact that by behaving differently the applicant could perhaps have avoided the measures about which he complains is not a matter for consideration in the context of exhaustion of domestic remedies: Article 35 of the Convention requires exhaustion in respect of the alleged breach of the Convention which, in the present case, would flow from execution of the removal order which was first made in February 2015. The Government do not contend that Convention-compliant remedies were available to challenge that removal order, and that the applicant failed to pursue them. Therefore, the Government ’ s objection concerning exhaustion of domestic remedies should be dismissed. 54. The Court considers that the complaints under Articles 2 and 3 raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. 2. Merits 55. The applicable general principles were summarised by the Court in L.M. and Others v. Russia, cited above, §§ 119-22. In particular, the Court stated as follows: “119. The Court notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of expulsion (see H.L.R. v. France, 29 April 1997, § 41, Reports of Judgments and Decisions 1997 ‑ III); however, it has never ruled out the possibility that the general situation of violence in a country of destination may 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 is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return ( see N.A. v. the United Kingdom, no. 25904/07, § 115, 17 July 2008).” 56. In that judgment the Court assessed in September 2015 a similar complaint concerning the situation in Syria and the circumstances of the applicants ’ cases ( §§ 123-126) as disclosing a violation of Articles 2 and 3 of the Convention. The Court noted that it had not yet adopted a judgment to evaluate the allegations of a risk of danger to life or ill-treatment in the context of the ongoing conflict in Syria, and that this was undoubtedly at least in part due to the fact that, as it appeared from the relevant UNHCR documents, most European countries did not at the time carry out involuntary returns to Syria. 57. In the present case the applicant ’ s complaint before the Court has been made in the context of the continuing hostilities in Syria, and in particular in his home town of Aleppo, as well as on account of the possibility that he would be drafted into active military service, thus intensifying the risks to his life and limb. 58. If an applicant has not already been removed, the material point in time for an assessment must be that of the Court ’ s consideration of the case (see Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996 ‑ V ). Since the nature of the Contracting States ’ responsibility under Article 3 of the Convention in cases of this kind lies in the act of exposing an individual to a real risk of death or ill ‑ treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known by the Contracting State at the time of the expulsion. The assessment must focus on the foreseeable consequences of the applicant ’ s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances (see, for example, Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007, and Vilvarajah and Others v. the United Kingdom, 30 October 1991, §§ 107-08, Series A no. 215 ). 59. In the present case the parties have not made any specific submissions nor provided any material concerning the evolution of the situation in Syria between late 2015 ( a fortiori, since February 2015 when the impugned removal order was issued) and the date of the Court ’ s deliberations. In the Court ’ s view, it was in the first place incumbent on the respondent Government to provide evidence that the general situation in Syria was not of the kind warranting protection under Article 3 of the Convention ( see J.K. and Others v. Sweden [GC], no. 59166/12, § 9 8, ECHR 2016; as regards the domestic assessment, see paragraphs 82 and 98 below). 60. In determining whether it has been shown before the Court that the applicant runs a real risk of suffering treatment proscribed by Article 2 or 3, the Court will assess the issue in the light of all the material placed before it and the material obtained proprio motu (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 116, ECHR 2012). Having obtained some relevant recent information (see paragraph 47 above ), the Court observes that the security and humanitarian situation and the type and extent of hostilities in Syria deteriorated dramatically between the applicant ’ s arrival in Russia in October 2011 and the removal order issued in February 2015, but also between that time and the refusal of his temporary asylum application. 61. The available information contains indications that, despite the agreement on the cessation of hostilities signed in February 2016, various parties to the hostilities have been employing methods and tactics of warfare which have increased the risk of civilian casualties or directly targeting civilians. The available material discloses reports of indiscriminate use of force, recent indiscriminate attacks, and attacks against civilians and civilian objects (see, by way of comparison, Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, §§ 241-50, 28 June 2011 ). 62. The Government may be understood to be maintaining that the applicant would be safe and would not be exposed to a risk of ill ‑ treatment upon arriving in Damascus, then in transit and upon arriving in his hometown or settling in another part of Syria (see paragraphs 18 and 21 above). The Court reiterates in this connection that Article 3 of the Convention does not, as such, preclude Contracting States from placing reliance on the existence of the alternative of internal flight in their assessment of an individual ’ s claim that a return to his country of origin would expose him to a real risk of being subjected to treatment proscribed by that provision (see Sufi and Elmi, cited above, §§ 265-66, with further references). In the present case the Court has not been provided with any material which would confirm that the situation in Damascus is sufficiently safe for the applicant, who alleges that he would be drafted into active military service, or that the applicant could travel from Damascus to a safe area in Syria. 63. The Court concludes that the applicant ’ s removal from Russia to Syria, on the basis of the judgment of 26 February 2015 as upheld on appeal, would be in breach of Articles 2 and 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ITS ARTICLES 2 AND 3 64. The applicant also argued that he had no effective remedies for the above complaint, in breach of Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 1. The Government 65. The Government argued that in February 2015 the applicant had been convicted on a charge of failure to leave Russia after the expiry of his visa; that was an instantaneous unlawful act committed in 2012. At that time, Article 18.8 § 1.1 of the CAO provided for a penalty of a fine, administrative removal being an additional penalty left to the discretion of the court. In the circumstances of the case, the courts had considered that this second penalty was justified and had provided reasons for their finding. The CAO did not preclude the examination of the complaints pertaining to a risk of torture or ill-treatment on account of an eventual removal measure. The courts could carry out such an examination by way of making a direct reference to the Convention or the Court ’ s case-law. 66. The Government argued that the temporary asylum procedure was an effective remedy against forced return to Syria, as confirmed by the statistical data. In 2013 and 2014 some 1,073 and 413 Syrian nationals respectively sought refugee status in Russia; no such application was granted. However, in the same years some 1,776 and 1,262 Syrians sought temporary asylum; 1,191 and 1,281 applications were granted. 67. Moreover, the non-judicial procedure for temporary asylum (examination of an application first by the local migration authority and then by the Federal Migration Authority) and the judicial review of an eventual decision by the courts at two levels of jurisdiction both have suspensive effect. This conclusion followed from sections 10, 12 and 13 of the Refugees Act. In the present case, the final court decision requiring the applicant ’ s administrative removal had not been enforced precisely because the proceedings concerning temporary asylum had been pending. 2. The applicant 68. The applicant argued that he had raised the arguments relating to Articles 2 and 3 of the Convention before the national authorities, namely in the temporary asylum procedure (see paragraphs 15 and 22 above). He argued that there was no statutory provision specifically requiring that a pending application for temporary asylum should have automatic suspensive effect vis-à-vis a removal order. The applicant disagreed with the Government, arguing that section 10 of the Refugees Act only concerned a ban on removing a foreigner pending an application for refugee status. The bailiff service in charge of enforcing the removal order had not issued a decision suspending such enforcement, for instance on account of the pending application for temporary asylum. Moreover, the applicant had had difficulties in communicating with his lawyer, which had adversely affected the accessibility of the temporary asylum procedure. B. The Court ’ s assessment 1. General principles 69. By virtue of Article 1 of the Convention, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI). 70. The Court has reiterated on numerous occasions that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they are 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 an “arguable complaint” under the Convention and to grant appropriate relief. The States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see Jabari v. Turkey, no. 40035/98, § 48, ECHR 2000 ‑ VIII). However, the remedy required by Article 13 must be “effective” in practice as well as in law (see Kudła, cited above, § 157). 71. 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. Nevertheless, its powers and the procedural guarantees which it affords are relevant in determining whether the remedy before it is effective (see Klass and Others v. Germany, 6 September 1978, § 67, Series A no. 28). When the “authority” concerned is not a judicial authority, the Court makes a point of verifying its independence (see, for example, Leander v. Sweden, 26 March 1987, §§ 77 and 81-83, Series A no. 116, and Khan v. the United Kingdom, no. 35394/97, §§ 44-47, ECHR 2000 ‑ V) and the procedural guarantees it offers applicants (see, mutatis mutandis, Chahal, cited above, §§ 152-54). 72. Judicial review proceedings constitute, in principle, an effective remedy within the meaning of Article 13 of the Convention in relation to complaints arising in the context of expulsion and extradition, provided that the courts can effectively review the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate ( see Tershiyev v. Azerbaijan, no. 10226/13, § 71, 31 July 2014). 73. 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 Rotaru v. Romania [GC], no. 28341/95, § 69, ECHR 2000 ‑ V). 74. The scope of the Contracting States ’ obligations under Article 13 varies depending on the nature of the applicant ’ s complaint. Where a complaint concerns allegations that the person ’ s expulsion would expose him or her to a real risk of suffering treatment contrary to Article 3 of the Convention, in view of the importance the Court attaches to that provision and given the irreversible nature of the harm that might occur if the alleged risk of torture or ill-treatment were to materialise, the effectiveness of the remedy for the purposes of Article 13 requires imperatively that the complaint be subject to close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III). Any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 also requires independent and rigorous scrutiny (see Jabari, cited above, § 50), and reasonable promptness (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004 ‑ IV; and De Souza Ribeiro v. France [GC], no. 22689/07, § 81, ECHR 2012 ). 75. In this type of cases, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 66, ECHR 2007 ‑ II, and Hirsi Jamaa and Others [GC], cited above, § 200). The requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. This is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention. Therefore, the Court has previously rejected arguments referring to administrative or other “practice” as sufficient grounds for a suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002 ‑ I; Gebremedhin [Gaberamadhien], cited above, § 66; and M.A. v. Cyprus, no. 41872/10, § 137, ECHR 2013 (extracts)). It has further pointed out the risks involved in a system where stays of execution must be applied for and are granted on a case-by-case basis (see Čonka, cited above, § 82). 76. Article 13 of the Convention does not compel Contracting States to set up a second level of appeal in this type of cases, it being sufficient that there is at least one domestic remedy which fully satisfies the requirements of this Article, namely that it provides for independent and rigorous scrutiny for a complaint relating to Article 3 of the Convention and has automatic suspensive effect in respect of the impugned measure (see A.M. v. the Netherlands, no. 29094/09, §§ 62 and 70, 5 July 2016). 77. The same principles apply when expulsion exposes an applicant to a real risk of a violation of his right to life safeguarded by Article 2 of the Convention (see L.M. and Others v. Russia, cited above, § 108). 2. Application of the principles in the present case 78. The applicant ’ s complaint under Articles 2 and 3 of the Convention has been declared admissible. The Court considers that he had an “arguable” complaint in that regard for the purposes of Article 13 of the Convention. 79. The Government submitted that, in CAO cases the courts were not precluded from examining the risks of violation of Articles 2 and 3 of the Convention, and that in the applicant ’ s case the court had imposed the penalty of administrative removal with due regard to all the relevant considerations. The Government also alleged that the temporary asylum procedure was an effective remedy against forced return to Syria (see paragraph 66 above), and that it had suspensive effect vis-à-vis the penalty of administrative removal, even where that penalty had already become final. Lastly, the Government mentioned that an application for refugee status was also an effective remedy in immigration cases. ( a ) Proceedings under the CAO (i) Automatic suspensive effect of an appeal 80. The Court first notes that the impugned interference arises from the trial judgment imposing the penalty of administrative removal. The Court observes that an ordinary appeal against a penalty of removal imposed by a first-instance court had an automatic suspensive effect under Article 31.2 of the CAO (see paragraph 26 above), in the sense that by operation of the law (and without leaving any discretion to a non-judicial or judicial authority) the removal was not to be carried out until the statutory time-limit for appeal had expired or until the appeal decision in the CAO case had been delivered. There is nothing to suggest that this provision was not sufficiently clear and precise or that it was not properly interpreted and applied in the majority of cases (see, however, Muminov v. Russia, no. 42502/06, § 102, 11 December 2008, where the removal had been unlawfully carried out before the appeal decision). The applicant was therefore protected from removal by virtue of Article 31.2 of the CAO until 4 March 2015, when the Supreme Court of the Dagestan Republic upheld the penalty of administrative removal. 81. While reiterating that Article 13 of the Convention does not compel Contracting States to set up a further level of appeal in this type of cases, the Court notes that the CAO provides for review of final judgments before a regional court and then before the Supreme Court of Russia under Article 30.12 of the CAO (see paragraph 27 above ). However, it appears that only a prosecutor can request a suspension under Article 31.6 of the CAO (see paragraph 28 above ) and that such suspension is not “automatic”. Consequently, the review procedure before a regional court and the Supreme Court of Russia is not an “effective remedy” for the purpose of Article 13 of the Convention in the context of a complaint arising under Articles 2 and 3 of the Convention. (ii) Independent and thorough scrutiny in the CAO case 82. First of all, the Court notes that the respondent Government have not cited a CAO provision or any other statutory provision which would require examination of the risks relating to Articles 2 and 3 of the Convention in cases entailing the penalty of administrative removal. However, having examined the material submitted by the respondent Government (in particular, the interpretation given to the CAO by the Supreme Court of Russia in a case decided in 2013, see paragraph 30 above), the Court does not exclude that theoretically there might be room in certain CAO proceedings for the examination of the risks pertaining to Articles 2 and 3 of the Convention (see, in the same vein, L.M. and Others v. Russia, cited above, § 115). Nevertheless, the Court is not convinced that any meaningful examination of the risks could be done in the present case as explained below. 83. “ Independent and thorough scrutiny” also implies that the remedy is capable of offering protection against removal where such scrutiny discloses substantial grounds to believe that there is a real risk of ill-treatment that the defendant would run in the case of the penalty of removal being imposed and enforced. The state of domestic law and judicial practice is not straightforward as regards the granting of adequate relief by way of refusing or revoking an order for administrative removal in immigration-related cases, where, as in the present case, a foreigner has been sentenced to the mandatory penalty of removal but runs a risk of death or ill-treatment in the country of his nationality. 84. The Court notes in this connection that in 2013 the CAO was amended to make administrative removal a mandatory penalty for certain offences, including under its Article 18. 8 § 1.1. The Government submitted that the applicant had been prosecuted for an offence that he had committed in 2012. It is true that the first-instance court stated that the penalty of administrative removal was optional. However, the appeal court corrected that view, finding that the penalty for the offence of which the applicant had been convicted was a fine with administrative removal (see paragraph 12 above). As clearly stated by the appeal court in the applicant ’ s CAO case (see paragraph 12 above), the applicant was convicted under Article 18.8 § 1.1 of the CAO that was introduced into the CAO in 2013 and provided for two mandatory penalties: a fine and administrative removal. So, the Court is not convinced that the courts had an opportunity to take into account arguments relating to Articles 2 and 3 of the Convention when imposing the sentence and thus to afford redress. In other words, the Court has no reason to consider on the basis of the material made available to it in the present case that it was open to the court to dispense with the penalty of removal on the strength of arguments relating to Article 2 or 3 of the Convention. Therefore, at the time, as the applicant was found guilty of the offence, the court had no choice but to impose that penalty, irrespective of the validity of the arguments relating to Article 2 or 3 of the Convention (see, by way of comparison, Gablishvili v. Russia, no. 39428/12, §§ 49-53 and §§ 56-57, 26 June 2014, and Alim v. Russia, no. 39417/07, § 95, 27 September 2011, which dealt with complaints under Article 8 of the Convention ). ( b ) Refugee status procedure 85. As to the refugee status procedure, the Court notes that it follows from the available information (see paragraphs 45 and 66 above) that in 2013 -15 the migration authorities dismissed almost all Syrian nationals ’ applications for refugee status. The respondent Government have not elaborated on whether, following the imposition of administrative removal, an application for asylum (refugee status) constituted an effective remedy within the meaning of Article 13 of the Convention. Thus, the Court will not consider it as such in the present case. ( c ) Temporary asylum procedure 86. As regards the temporary asylum procedure, the Government argued that it was an effective remedy against forced return to Syria, and that it had automatic suspensive effect vis-à-vis the penalty of administrative removal, even where that penalty had already become final. (i) Suspensive effect of the temporary asylum procedure vis-à-vis the penalty of administrative removal 87. The Court reiterates that, given the fundamental importance of the rights that are at stake in this type of case and given the irreversible nature of the harm that might occur, it is indispensable that for a domestic remedy to be effective in terms of Article 13 of the Convention, national law should provide that a domestic remedy vis-a-vis the impugned measure or decision should have “automatic suspensive effect” ( see the cases cited in paragraph 75 above). 88. Section 12 of the Refugees Act states that the person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or previous habitual residence (see paragraph 35 above). 89. As regards availability of suspensive effect before a decision on an application for temporary asylum is taken, the Court is not convinced by the Government ’ s submission in the present case that sections 10, 12 and 13 of the Refugees Act, whether read separately or together, required that a pending application for temporary asylum had an “automatic suspensive effect” vis-à-vis the impugned measure, namely the final order for administrative removal in the present case. Section 10 of the Act exclusively concerns the refugee status procedure and does not refer to the temporary asylum procedure (see paragraph 34 above). Section 12 of the Act concerns specifically the latter, but only applies where the person has already been granted temporary asylum. Unlike section 10 § 1, section 12 does not state or even imply that no removal is permissible while an application is pending before the migration authority. Lastly, it is noted that section 13 describes the circumstances in which removal is effected following an unfavorable outcome of the application for refugee status (see paragraph 34 above). 90. The Government did not cite any other provision of Russian law which would unequivocally and automatically prevent enforcement of the final penalty of administrative removal on account of the applicant ’ s pending application for temporary asylum. The CAO, which was the legal basis for issuing the impugned penalty of administrative removal, contained no provision requiring suspension of its enforcement on account of a pending application for temporary asylum. The Government submitted no document which would confirm their argument that the enforcement proceedings in respect of the penalty of administrative removal had been suspended on account of the temporary asylum application lodged in May 2015. For instance, there is no indication that any relevant assessment was made and any relevant decision was taken by the bailiff office or another competent authority. 91. Concerning judicial review of a decision taken on the application for temporary asylum, the same considerations apply as regards the Refugees Act. The Court also notes that judicial review in this situation has been regulated since September 2015 by the Code of Administrative Procedure (“the CAP”). The Government have not suggested, and the Court does not find, that the CAP (see paragraphs 40 - 41 above) provides for an “automatic suspensive effect”, in particular where, as in the present case, a penalty of administrative removal has already become final. 92. The respondent Government have adduced no proof to confirm the existence of any clear, consistent and well-known administrative or judicial practice requiring the automatic suspension of any final removal measure pending the final resolution of proceedings concerning temporary asylum. 93. Therefore, having carefully examined the pertinent provisions of the domestic law, the Court is not satisfied that a pending application for temporary asylum or pending judicial review of a refusal of temporary asylum had “automatic suspensive effect” in respect of the removal, ordered under the Code of Administrative Offences. 94. The Court concludes that, while a successful application for temporary asylum would be capable of suspending enforcement of a penalty of administrative removal, in the present case the applicant was refused temporary asylum and thus did not obtain suspensive effect in respect of the final penalty of administrative removal. ( ii ) Independent and thorough scrutiny 95. The Court first observes that the applicant made no arguments relating to any formal obstacles adversely affecting the accessibility of the temporary asylum procedure (see, by way of comparison, in the context of Article 3 of the Convention, L.M. and Others v. Russia, cited above, § 105). 96. Second, as regards the pertinence of this remedy for an Article 2 or 3 issue, it is noted that the Refugees Act and Government decree no. 274 do not contain precise criteria for granting temporary asylum to foreign nationals in Russia where the grounds listed in section 1 of the Refugees Act, such as persecution on grounds of race, religion, citizenship, membership of a social group or political views (see paragraph 32 above), are not directly pertinent, as in the present case. The Court has taken note of the position expressed by the Constitutional Court (see paragraph 38 above) and has not been given sufficient reason to rule out that the temporary asylum procedure was, in theory, capable of a thorough assessment of the risks arising under Articles 2 and 3 of the Convention. In fact, the Court has taken note of the typical situations for granting temporary asylum as listed by the District Court in its judgment of 9 December 2015 in the applicant ’ s case, albeit without reference to any relevant international or domestic material (see paragraph 21 above). It is conceivable that the risk arising in relation to the context of ongoing grave hostilities in a foreigner ’ s home country could fall within the scope of one of the situations listed. The Court also notes that the granting of temporary asylum prevents a foreigner ’ s removal from Russia, albeit for a limited period of time. 97. Therefore, the Court does not rule out that this form of temporary protection could be an “effective” solution in the applicant ’ s situation, given that his grievance under Articles 2 and 3 of the Convention was based on the facts arising from the ongoing and particularly grave situation of hostilities in his home country (see, by way of comparison, Khamrakulov v. Russia, no. 68894/13, §§ 46-61, 16 April 2015; Nabid Abdullayev v. Russia, no. 8474/14, §§ 44 and 49, 15 October 2015, and Turgunov v. Russia, no. 15590/14, §§ 33 and 36, 22 October 2015). 98. However, the national authorities considered in the present case, without specifying why and unlike in other similar situations in 2015 (see paragraph 45 above), that the situation of ongoing hostilities in Syria did not justify temporary asylum. The Court also observes that the applicant ’ s application for temporary asylum was dismissed with reference to a number of factors (failure to leave Russia in 2012; failure to apply for asylum at the time; continued unlawful stay and unlawful employment in Russia; and prosecution for administrative offences; see paragraph 18 above) which were unrelated to the Article 3 issues. Therefore, the domestic assessment was based on considerations that fell outside the scope of thorough scrutiny required under Article 3 of the Convention in this type of cases. 3. Conclusion 99. In the light of the above considerations as to both the administrative proceedings and the temporary asylum proceedings, the Court concludes that there has been a violation of Article 13 of the Convention in conjunction with its Articles 2 and 3. III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 100. The applicant complained in October 2015 that his continuing prolonged detention was arbitrary and unnecessary in view of the fact that his removal to Syria was and remained impracticable. He also complained that there was no procedure for review of his continued detention. Article 5 of the Convention reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ... ” A. The parties ’ submissions 101. The Government argued that following the appeal decision in the administrative offence case, enforcement proceedings had been promptly instituted. However, those proceedings could not be pursued in view of the pending application for temporary asylum and the Court ’ s indication under Rule 39 of the Rules of Court. Thus, it could not be said that the domestic authorities had failed to display special diligence, adversely affecting the justification for the applicant ’ s continued detention. The Government also argued that it was open to the applicant to lodge an application for review proceedings under Article 30.12 of the CAO and seek annulment of the removal penalty on account of new circumstances making his removal impossible or his detention no longer necessary. 102. The applicant argued that the domestic regulation of detention with a view to enforcing the penalty of administrative removal was defective in terms of Article 5 of the Convention, as established by the Court in Kim v. Russia (no. 44260/13, judgment of 17 July 2014). B. The Court ’ s assessment 1. Admissibility 103. The Court notes that the complaints under Article 5 §§ 1 and 4 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. 2. Merits (a) Article 5 § 4 of the Convention 104. The Court observes at the outset that the applicant had a possibility to appeal against the detention as part of the judgment of 2 6 February 2015 when he lodged an appeal against the merits of this judgment. However, this would have related to his detention until 4 March 2015 when the appeal was examined. The Court notes in this connection that a judicial review of the kind required under Article 5 § 4 cannot be said to be incorporated in the initial detention order of 26 February 2015. The thrust of the applicant ’ s complaint under Article 5 § 4 was not directed against the initial decision on his placement in custody but rather against his inability to obtain a judicial review of his detention after a certain lapse of time. 105. It appears that under the CAO a judgment is enforceable within a two-year period after it becomes final and, by possible implication, it appears that detention of a foreigner may be allowable up to two years too. By virtue of Article 5 § 4 the applicant was entitled to apply to a “court” having jurisdiction to decide “speedily” whether or not his deprivation of liberty had become “unlawful” in the light of new factors which emerged subsequently to the decision on his initial placement in custody (see Kim, cited above, § 42). 106. Neither the CAO nor any other applicable legislation provided for a procedure enabling the applicant to “take proceedings” for the review of his detention and to obtain release ( see Kim, cited above, § 43, and, by contrast, J.N. v. the United Kingdom, no. 37289/12, § 97, 19 May 2016). It is also noted that the CAO did not provide for a procedure whereby detention would be automatically reviewed after a certain period. 107. It appears that the procedure under Article 30.12 of the CAO for further review of the trial and appeal decisions in the administrative offence case was available to the applicant at any time, and was not subject to any time-limit. However, it only indirectly concerned the detention matter in so far as review of the administrative charge could lead to the annulment of the penalty of removal, thus removing the grounds for keeping the applicant in detention with a view to enforcing his removal. Furthermore, there is nothing to suggest that the reviewing court would be competent to deal with the “new circumstances” referred to by the Government, as that would go beyond the scope of the final decisions taken by the trial and appeal courts. 108. The Court reiterates that, since its Azimov judgment, which concerned a similar complaint ( see Azimov v. Russia, no. 67474/11, § 153, 18 April 2013 ), it has found a violation of Article 5 § 4 in a number of cases against Russia on account of the absence of any domestic legal provision which could have allowed an applicant to bring proceedings for judicial review of his or her detention pending expulsion (see L.M. and Others v. Russia, § 141, and Kim, §§ 39-43, both cited above; Rakhimov v. Russia, no. 50552/13, §§ 148-50, 10 July 2014; and Akram Karimov v. Russia, no. 62892/12, §§ 199-204, 28 May 2014). In the Kim case, the Government acknowledged a violation of Article 5 § 4 and, having regard to the recurrent nature of the violation, the Court directed that the Russian authorities should “secure in [their] domestic legal order a mechanism which allows individuals to institute proceedings for the examination of the lawfulness of their detention pending removal in the light of the developments in the removal proceedings” (cited above, § 71). 109. Accordingly, the applicant in the present case did not have at his disposal a procedure for judicial review of the lawfulness of his detention. Therefore, the Court finds that there has been a violation of Article 5 § 4 of the Convention. ( b ) Article 5 § 1 of the Convention 110. It is not disputed that the applicant ’ s placement in a centre for foreigners in February 2015 amounted to “deprivation of liberty” and that the arrest and detention fell within the ambit of subparagraph (f) of Article 5 § 1 of the Convention. 111. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified only for as long as removal 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 A. and Others v. the United Kingdom [GC], no. 3455/05, § 1 64, ECHR 2009). The Court also reiterates that deprivation of liberty under Article 5 § 1 (f) of the Convention must conform to the substantive and procedural rules of national law. 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. The notion of “arbitrariness” in Article 5 § 1 extends beyond a lack of conformity with national law, so that deprivation of liberty may be lawful in terms of domestic law but still arbitrary, and therefore contrary to the Convention. 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 grounds of detention relied on by the Government, the place and conditions of detention must be appropriate, and the length of the detention must not exceed that reasonably required for the purpose pursued (see Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008; and Rustamov v. Russia, no. 11209/10, § 150, 3 July 2012, with further references). 112. The applicant raises no particular issue relating to the period from the applicant ’ s arrest and detention until the trial judgment. The Court observes that the penalty of administrative removal became final and enforceable after the appeal decision in the case, that is on 4 March 2015. 113. The Court observes that no proceedings which could have had a bearing on the penalty of administrative removal were pending or “in progress” between 4 March and 5 May 2015. 114. On the latter date the applicant sought temporary asylum. The temporary asylum proceedings were still pending on 26 October 2015 when the Court made an indication under Rule 39 of the Rules of Court preventing enforcement of the penalty of removal. While the Court has identified certain deficiencies of the temporary asylum procedure (see, in particular, paragraphs 89 - 94 above) in the context of Article 13 of the Convention in conjunction with its Articles 2 and 3, it may be argued in the context of Article 5 § 1 of the Convention that a successful application for temporary asylum could have bearing on the removal measure by way of impeding its enforcement for the duration of the temporary asylum. 115. Nevertheless, in the Court ’ s view, it should have been sufficiently evident for the national authorities already in February and March 2015 that the applicant ’ s removal was not practicable and would remain unlikely in view of the worsening conflict in Syria (see, in the same vein the Court ’ s findings in September 2015 in L.M. and Others v. Russia, cited above, § 148). In these circumstances, it was incumbent on the domestic authorities to consider alternative measures that could be taken in respect of the applicant (see Azimov, cited above, § 173). However, once the order for the applicant ’ s placement in a special detention facility for foreigners had been issued on 26 February 2015, the detention matter was not – and, as established above under Article 5 § 4 of the Convention, could not be – reassessed, in particular as to whether it would be practicable to ensure his removal to Syria (see also the Court ’ s findings in paragraph 62 above). 116. The Court previously found violations of Article 5 § 1 of the Convention on account of the same statutory framework for detention of foreigners with a view to administrative removal (see Azimov, §§ 160-174; Kim, §§ 46-57; and L.M. and Others v. Russia, §§ 147-52, all cited above; R. v. Russia, no. 11916/15, §§ 103-107, 26 January 2016; compare Chkhikvishvili v. Russia, no. 43348/13, §§ 30-32, 25 October 2016 ). The Court finds no sufficient reason to reach a different conclusion in the present case. 117. There has therefore been a violation of Article 5 § 1 of the Convention. IV. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION 118. The applicant also complained that enforcement of the removal order would constitute a disproportionate interference with his family life, in breach of Article 8 of the Convention. He also referred in this connection to Article 13 of the Convention. 119. Having regard to the finding the applicant ’ s removal would violate Articles 2 and 3 of the Convention (see paragraph 63 above), the Court considers that it is not necessary to examine whether, in this case, the complaints under Articles 8 and 13 of the Convention are admissible and whether there have also been violations of those provisions (see, for the approach, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014 ). V. RULE 39 OF THE RULES OF COURT 120. The Court reiterates that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 121. The Court considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 3 above ) must continue in force until the present judgment becomes final or until the Court takes a further decision in this connection. VI. 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 applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage on account of his complaints under Articles 2, 3, 5 and 13 of the Convention. 124. The Government contested this monetary claim, arguing that it was limited to the issues arising under Articles 2 and 3 of the Convention and that no compensation was normally awarded on account of a potential violation. 125. The Court considers that the finding of a violation under Article 13 of the Convention and the finding of a potential violation under Articles 2 and 3 of the Convention constitute just satisfaction on account of non-pecuniary damage. As to the findings under Article 5 of the Convention, the Court notes that the applicant did link his monetary claim to his grievances relating to the deprivation of his liberty. The Court thus awards the applicant EUR 7, 5 00 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 126. The applicant also claimed EUR 4,100 and EUR 287 for the expenses incurred before the Court on account of Ms Biryukova ’ s fees and postal and sundry expenses respectively. 127. The Government argued that the claim should be dismissed because there was no contract between the lawyer and the applicant or at least a document setting out the lawyer ’ s hourly rate; in any event, the lawyer ’ s fees were excessive in view of the simplicity of the case. 128. 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 1, 5 00 under all heads. C. Default interest 129. 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. VII. ARTICLE 46 OF THE CONVENTION 130. In his observations the applicant referred to the Court ’ s findings in the Kim judgment (cited above, §§ 70-72) concerning general measures in relation to detention with a view to enforcement of the penalty of administrative removal under Russian law. The applicant submitted that no such measures had been put in place after the judgment in Kim had become final in October 2014 and that his continued detention was subject to regulation within the same defective legislative framework. 131. The Court finds it appropriate to examine whether in the present case it is necessary to make any findings 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.” 132. 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. 133. In principle, it is not for the Court to determine possible appropriate measures of redress for a respondent State to carry out in accordance with its obligations under Article 46 of the Convention. With a view, however, to helping the respondent State 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 Stanev v. Bulgaria [GC], no. 36760/06, § 255, 17 January 2012; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, ECHR 2009; and Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). The Court ’ s concern is to facilitate the rapid and effective suppression of a malfunction in the national system of human-rights protection. In that connection, it considers that general measures at the national level are undoubtedly called for in the execution of the present judgment (see Driza v. Albania, no. 33771/02, § 125, ECHR 2007 ‑ V (extracts)). 134. In the present case the Court has concluded that the applicant ’ s removal on the basis of the judgment of 26 February 2015, which forms the basis of his initial placement in the detention centre for foreigners, would be in breach Articles 2 and 3 of the Convention. The Court has also concluded that the applicant ’ s continued detention there since March 2015 does not comply with Article 5 § 1 of the Convention. In addition, as the Court has already found, this detention has not been accompanied by the requisite procedural guarantees. General measures are expected from the respondent State in order to correct this situation (see Kim, cited above, § 71). 135. In view of the above considerations, the Court finds that it is necessary to indicate individual measures for the execution of this judgment (see L.M. and Others v. Russia, cited above, §§ 168-69, and Hadžimejlić and Others v. Bosnia and Herzegovina, nos. 3427/13, 74569/13 and 7157/14, §§ 65-66, 3 November 2015). Having regard to the particular circumstances of the case and to the urgent need to put an end to the violation of the Convention it has found under Article 5 of the Convention the Court considers that the respondent State should ensure, by appropriate means, that the applicant is no longer exposed to this violation. In the Court ’ s view, the appropriate way to deal with the matter would be to release the applicant without delay and no later than on the day following notification that the present judgment has become final. | The Court held that there had been a violations of Article 5 § 1 (right to liberty and security) and Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention on account of the applicant’s detention with a view to enforcing the penalty of administrative removal. It noted in particular that neither the Code of Administrative Offences nor any other applicable legislation provided for a procedure which would have allowed the applicant to obtain a review of his detention and obtain release. There was also no provision requiring his detention to be automatically reviewed on a regular basis. The Court further observed that detention with a view to expulsion would only be compatible with Article 5 § 1 of the Convention if the proceedings relating to expulsion were in process and pursued with due diligence, and if the detention was lawful and was not arbitrary. In this case, it should have been sufficiently evident to the Russian authorities in February and March 2015 that the removal of the applicant to Syria was not practicable, and would remain unlikely in view of the worsening conflict in Syria. It was therefore incumbent on the authorities to consider alternative arrangements for the authorities. However, once the order was made for him to be detained in a special detention facility for foreigners, his detention was not reassessed. Lastly, under Article 46 (binding force and implementation of judgments) of the Convention, the Court indicated with reference to its findings under Article 5 that it would be appropriate to release the applicant without delay, and no later than on the day following notification that the present judgment has become final. |
3 | Deprivation of liberty and challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE 28. The detention of aliens pending their removal is mainly governed, in French domestic law, by the provisions of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). ... B. Conditions of detention ... 31. The practice of detaining children accompanying their parents is governed by decree no. 2005 ‑ 617 of 30 May 2005 concerning administrative detention and holding areas, which amended the CESEDA provision as follows: Article R. 553-3 “Administrative detention centres, which are not entitled to accommodate over 140 residents, shall provide detained aliens with hotel-type facilities and collective catering services. They shall comply with the following standards: 1. A minimum usable surface area of 10 square metres per detainee consisting of a bedroom and areas freely accessible during opening hours; 2. Non-mixed shared rooms, housing a maximum of six; 3. Personal hygiene facilities, consisting of washbasins, showers and toilets, freely accessible and in sufficient numbers, representing one washroom for every ten detainees; 4. A telephone freely accessible for every fifty detainees; 5. Premises and facilities necessary for catering, in compliance with standards laid down in a joint decision of the Agriculture Minister, the Defence Minister, the Health Minister and the Minister for SMEs, trade and crafts; 6. For more than forty detainees, a leisure room separate from the canteen, with a surface area of at least 50 square metres, plus 10 square metres for every fifteen additional detainees; 7. One or more rooms containing medical equipment, reserved for medical personnel; 8. A room for visits by family members and consular staff; 9. The room mentioned in Article R. 553-7, reserved for lawyers; 10. A room assigned to the organisation mentioned in Article R. 553-13; 11. A room, containing furniture and a telephone, assigned to the association mentioned in the first paragraph of Article R. 553-14; 12. An area for open-air exercise; 13. A luggage room. Administrative detention centres catering for families shall also contain bedrooms that are specially adapted, in particular for childcare.” Article L. 552-4 “By way of exception, the court may order aliens to reside at a specific address when they can provide effective guarantees that they will not abscond, after surrendering to the police or gendarmerie their original passport and any identity document, in exchange for an acknowledgment of receipt constituting proof of the person’s identity and indicating the removal measure that is pending. Where an order to reside at a specific address is made in respect of an alien who has previously absconded from the execution of an applicable removal or deportation measure, or has breached a ban on re-entry that has not been lifted, the order shall give specific reasoning.” 32. The Court notes that French law precludes the placement of minors in administrative detention: Article L. 511-4 “An obligation to leave French territory or a removal measure, pursuant to the present chapter, cannot be decided in respect of: 1 o An alien who is under eighteen years of age; ...” Article L. 521-4 “Deportation cannot be ordered in respect of an alien under eighteen years of age.” 33. The Cimade, an ecumenical non-governmental organisation providing assistance to immigrants, in its report “Administrative detention centres and facilities” (“ Centres et locaux de rétention administrative ”), published in 2010, pointed out that even though the law did not permit the detention of minors, 318 children “accompanying” their parents had been deprived of their liberty in 2009. Their average age was eight. The Cimade emphasised that administrative measures of placement in detention could not be taken against children, so their detention was devoid of legal basis. 34. As a result, the administrative detention centres of Lille-Lesquin 2, Coquelles, Lyon, Rouen-Oissel, Marseille, Metz-Queuleu, Nîmes, Saint-Jacques de la Lande (Rennes), Perpignan, Hendaye, Le Mesnil-Amelot 2 and Toulouse-Cornebarrieu were thus “authorised to receive families”. The Cimade observed that there were flagrant discrepancies between the various administrative detention centres in terms of how families were actually catered for. The total lack of guidelines as to what was indispensable for a child precluded any harmonisation of the conditions of detention for families in the centres. The task was left to each centre’s director, whose responsibility it was to adapt the day-to-day management of the centre to the particular needs of a family with children, without having the support of staff specifically trained in education. ... D. Case-law 42. The domestic courts have given a number of rulings on the practice of placing children accompanying their parents in administrative detention pending removal. 1. Case-law of the ordinary courts 43. In an order of 23 October 2007 (no. 87/2007) the President of the Rennes Court of Appeal ruled on an appeal by the public prosecutor with a view to the annulment of an order by the liberties and detention judge concerning the release of a family with an infant. The public prosecutor had argued that the fact of holding them “on premises that were specially adapted to receive families did not constitute inhuman treatment”. The Court of Appeal upheld the first-instance order with the following reasoning: “even though it provides an area reserved for the ‘reception’ of families, the detention centre remains a place where aliens are detained pending their removal from France, for a maximum period of thirty-two days; in the present case, the fact of holding in such a place a young mother, her husband and their three-week-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, and secondly, of the great emotional and mental distress inflicted on the mother and father by detaining them with the infant, a distress which, by its nature and duration ..., exceeds the threshold of seriousness required for the above-mentioned provision to be engaged, and which, moreover, is manifestly disproportionate to the aim pursued, namely the couple’s removal ...” 44. In another order, this time of 29 September 2008 (no. 271/2008), the same Court of Appeal took the view that “even though it provides an area reserved for the reception of families, the detention centre remains a place of seclusion [and] the fact of holding in such a place a very young mother, her husband and their one-year-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights”. That court further noted in particular that, for a family, such seclusion caused “great emotional and mental suffering” which “exceeded the threshold of seriousness for the purposes of the Convention”. In a decision of 10 December 2009 (Bulletin 2009, I, no. 250), the Court of Cassation quashed that order. It found that the reasons given by the Court of Appeal did not suffice for inhuman or degrading treatment to be established in the particular circumstances of the case. 45. In an order of 21 February 2008, the Toulouse Court of Appeal (no. 08/00088) ordered the immediate release of the appellants on the following grounds: “the fact of holding in such a place a young mother, her husband and their two-month-old baby constitutes inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights on account, firstly, of the abnormal living conditions imposed on this very young child, virtually since birth, having been held in police custody with its mother, and secondly, of the great emotional and mental distress inflicted on the mother and father by the detention measure, a distress that is manifestly disproportionate to the aim pursued, namely the execution of the removal order ...” That decision was quashed by the Court of Cassation, which decided in a judgment of 10 December 2009 (Bulletin 2009, I, no. 249) as follows: “inhuman or degrading treatment is not constituted by the provisional holding in administrative detention of a family, made up of a man, a woman and their child of a few months’ old, pending the execution of an enforceable removal measure, where such deprivation of liberty has been lawfully ordered by a judicial authority, under its supervision, and is carried out in an area of the detention centre specially reserved for families, unless it is shown that the area is not adapted to the needs of family life or of human dignity.” 2. Administrative case-law 46. The GISTI and the Cimade applied to the Conseil d’Etat seeking the annulment of the decree of 30 May 2005 “in so far as it organised the placement in administrative detention of families, including minors, but their applications were rejected in a judgment of 12 June 2006 (no. 282275). Concerning the detention of families, it took the view that Article 14 of the decree in question did not have the purpose or effect of permitting the administrative authorities to decide on the deprivation of liberty of the families of individuals placed in detention, but that it sought only to provide for the reception of such families. The Conseil d’Etat thus concluded that the administrative authority was competent to make such arrangements, which were not in breach either of the CESEDA or of the New York Convention on the Rights of the Child. ... III. RELEVANT INTERNATIONAL LAW ... B. Council of Europe ... 3. Commissioner for Human Rights 56. Following his visit from 5 to 21 September 2005, the Commissioner for Human Rights published, on 15 February 2006, a report on “the effective respect for human rights in France” (CommDH(2006)2). He observed, concerning the detention of minors, that children should not be kept in an enclosed facility, offering little in the way of activities and few, if any, outings, and where conditions were precarious and their safety could not be guaranteed. He recommended that an alternative solution be proposed to families with children (§ 196). He noted in this connection that compulsory residence orders, which were provided for by law, were “little used” (§ 257). The Commissioner further observed that the placement of children in a detention centre was incompatible with the New York Convention and French law, which precluded the use of removal orders against minors. He found, however, that a legal vacuum made it possible to place children in detention centres and remove them, on the grounds of concern not to separate them from their families. In his view, the French authorities appeared to completely underestimate the legal and humanitarian problems posed by the presence of children in such centres (§ 255). He added, lastly, that in any event, no children should be detained on the grounds that their parents did not have the necessary papers to remain in France, especially “in places marked by overcrowding, dilapidation, promiscuity ( sic ) and very strong tensions” (§ 257). 57. In his report of 20 November 2008 (CommDH2008(34)) the Commissioner noted that “[n]otwithstanding the recommendation made in the 2006 report, an increasing number of children [were] placed in administrative holding centres with their parents”. He added that it was regrettable that such holding centres and waiting zones at the border were the only places in France where minors under the age of 13 were deprived of their liberty. He found, lastly, that the French authorities continued to underestimate the problems posed by the presence of children in holding centres and invited the authorities to place families in administrative detention only in cases of extreme necessity, so as to avoid causing children irreparable trauma. 4. European Committee for the Prevention of Torture (CPT) 58. Following its visit to numerous administrative detention centres in France (Palaiseau, Vincennes 1 and 2, Marseille, Toulouse-Blagnac 2 and Cornebarrieu), in 2006, the CPT raised with the Government the question of detaining families, and in particular any “accompanying” children, in such centres. It noted that this type of situation was not exceptional. In response to concerns about the conditions of accommodation, the French authorities acknowledged that “the current furnishings in the bedrooms [were] not always fully adapted to small children ...”. C. European Union 1. European Union legislation 59. On 16 December 2008 the Parliament and the Council of the European Union adopted Directive 2008/115/EC, known as the “Return Directive”, on common standards and procedures in Member States for returning illegally staying third-country nationals (Official Journal L. 348, 24 December 2008, pp. 0098 ‑ 0107). The relevant provision reads as follows: “(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued ...” 60. In Council Directive 2003/9/EC, the “Reception Directive”, adopted on 27 January 2003, the European Union gave the following definition of vulnerable persons particularly requiring the authorities’ attention: Chapter IV Provisions for persons with special needs Article 17 “General principle 1. ... minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence ...” Article 18 “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. ...” 61. The European Union Charter of Fundamental Rights became binding with the entry into force of the Lisbon Treaty on 1 December 2009. Article 24 reads as follows: Article 24: The rights of the child “... 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. ...” 2. Report commissioned by the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) 62. In December 2007 the LIBE Committee published a study entitled: “The conditions in centres for third country national (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states” (PE 393.275) analysing the implementation of the “reception” directive. The report’s authors found that minors were detained in the vast majority of EU States (France, Germany, Belgium, the United Kingdom, the Czech Republic, Slovakia, Portugal, Luxembourg, Spain, Latvia, Estonia, Ireland, Greece, Malta and Cyprus). The report presents an exhaustive study of the conditions of reception of vulnerable persons in EU member States. Austria appears to be the only State that never has recourse to detention for minors and Sweden limits it to seventy-two hours. Countries such as Belgium, France and the United Kingdom, however, have recourse to detention almost systematically for accompanied children. The report further shows that in spite of the existence of separate sections reserved for families with children and improved conditions (game rooms, toys, etc.), the fact remains that the lack of privacy, stressful living conditions, food, daily routine, negation of intimacy and the human and material environment are not adapted to children. The detention centre staff interviewed all felt that children should not be imprisoned in detention centres for the short or long term, because of the negative impact this traumatic experience could have on the children’s psychological balance, on their relations with their parents and on the image the children had of their parents whilst in detention. 63. In the part concerning France, the report noted a deterioration in the atmosphere in these secure centres and in particular a rise in the number of desperate acts committed, including physical assaults. It was also suggested that the improvement in physical conditions for families had the perverse effect of making this type of detention seem banal when the very principle of detaining them in this position could be questioned. The report’s authors added: “The presence of children in these places where they are deprived of their freedom, even if these are ‘family zones’ and they are kept here in order to keep families together, was particularly shocking for the study team”. THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 70. The applicants complained of a violation of Article 3 of the Convention. ... Secondly, they alleged that their placement in administrative detention, from 27 August to 12 September 2007, in view of the conditions and duration of the detention, had been incompatible with the provisions of Article 3 of the Convention. That provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 71. The Court begins by finding that the two applications should be joined. ... B. The second aspect of the complaint alleging a violation of Article 3, on account of the conditions of administrative detention ... 2. Merits (a) The parties’ arguments 76. The applicants observed that foreign minors were accorded particular protection under the specific texts applicable to them, in particular the New York Convention on the Rights of the Child of 26 January 1990. 77. The applicants added that the Rouen-Oissel detention centre was overcrowded and dilapidated, with a lack of privacy and a high level of tension, especially for children, who could not comprehend the reasons for the detention. They explained that the centre reverberated with noise, as announcements were constantly being made via loud-speakers, thus exacerbating the feeling of stress and confinement. Despite the possibility of using some childcare facilities, a detention centre remained totally unsuitable for very small children. They added that in the accommodation block the bedroom windows were covered with a tight grill that completely obscured the view of the courtyard outside. 78. On their arrival, the applicants’ personal belongings had been taken by the police officers, including the baby’s milk. The bottle was returned to them only after they had negotiated with the officers. 79. The applicants had only been able to receive one visit from a family member, for ten minutes and without the children being present. The eldest daughter had refused to eat while in the centre and showed signs of anxiety and stress. The second applicant’s requests concerning her daughter’s dietary preferences had been denied and no exemption had been authorised in order to adapt the proposed meals to the child’s needs. On several occasions the police officers had threatened the child with “placement by a judge” and the second applicant had been told that she was a “bad mother”. 80. The applicants added that, as they had no spare clothing, they had been obliged to put on damp clothes after washing them. 81. They further argued that, in addition to the unsuitability of the conditions on the premises, the duration of their detention had been totally incompatible with their children’s best interests and their eldest daughter had found it particularly traumatic, resulting in eating disorders and considerable anxiety and stress during and after her stay in the centre. 82. The Government observed that the administrative detention of illegal immigrants awaiting removal did not suffice in itself to establish the existence of inhuman and degrading treatment. They explained that in principle it was not prohibited to detain children accompanied by their parents. They recognised that it was necessary to preserve the child’s interest when families were detained and consequently, once the legitimacy of the parents’ detention had been established, there could be no question of separating them from their children. 83. In this connection they explained that the placement of minors in detention centres with their parents was not systematic and that other solutions existed. Moreover, the applicants had been placed in administrative detention in a hotel in Angers before being transferred to the airport. It was only because their flight had been cancelled that they had then been placed in the Rouen-Oissel centre. 84. The Government wished to distinguish the present case, firstly, from that of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, ECHR 2006 ‑ XI), where the applicant had been an unaccompanied minor detained on her own; and, secondly, from the case of Muskhadzhiyeva and Others v. Belgium (no. 41442/07, 19 January 2010), where the Court had taken the view that the two eldest siblings were more vulnerable to the environment of the detention centre. Whilst in Muskhadzhiyeva and Others the children were aged seven months, three and a half, five and seven, in the present case the children were three years’ old and six months’ old. Applying the Court’s case-law, the Government argued that the age of the applicant children was such that they would have a limited perception of their environment. The Government noted that in Muskhadzhiyeva and Others the children’s psychological problems had been certified by doctors, one of them being diagnosed with “post-traumatic stress and showing an excess of anxiety far greater than that of children of her age”. They pointed out that it had been the combination of the children’s age and health, the length of the detention and the ill-adapted accommodation facilities that had led the Court to find the violation of Article 3 in that case. 85. The Government indicated that the authorities had deployed significant resources to improve the reception of families in detention. Rouen-Oissel was one of eleven centres that specifically catered for parents accompanied by their minor children. The Government explained that part of the centre was reserved for families, with family bedrooms containing facilities for children (childcare material and games). They did not dispute the fact that the windows were covered but pointed out that free access to the entire accommodation area, including indoor and outdoor yards, was possible between 7.30 a.m. and 10.30 p.m. 86. The Government observed that visits were in principle authorised from 10 a.m. to 11.30 a.m. and 2 p.m. to 5 p.m. and that these times could be extended for visitors travelling from afar. They were surprised by the applicants’ allegation that they had not enjoyed the right to receive visits. 87. The Government were also surprised by the allegation that police officers had proffered threats against the eldest child and noted that the accusations remained unsubstantiated. They further called into question the disorders from which the eldest child had allegedly suffered (refusal to eat, stress, anxiety) and wondered why the parents had not consulted the doctor on duty in the centre or used the infirmary. Moreover, they cast doubt on the alleged denial of the request for an exemption to adapt meals to the child’s needs. Article 13 of the internal rules provided for special menus, especially for reasons of age or health, thus applicable to very small children. In addition, the Government pointed out that families did not take their meals with the other individuals in the centre. 88. As regards the length of the detention, the Government observed that it was strictly governed by law and that the lawfulness of any placement in detention was reviewed by a judge. In addition, the length of the detention in the present case had been relatively short compared to that observed in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhiyeva and Others, cited above. (b) The Court’s assessment (i) General principles 89. Concerning the general principles that are applicable in the area of administrative detention, the Court would refer to paragraph 48 of the Mubilanzila Mayeka and Kaniki Mitunga judgment, cited above. 90. As regards minors, more specifically, the Court observes that the international Convention on the Rights of the Child provides in Article 37 that “[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age”. Concerning the confinement of foreign minors, the Court has already had occasion to rule on the detention of children in custodial facilities pending their removal. In the case of Rahimi v. Greece (no. 8687/08, §§ 85-86, 5 April 2011), the Court found, in respect of an unaccompanied minor in such a facility, that the conditions of his detention were so poor that they undermined the very essence of human dignity and that they could be regarded in themselves, without taking into consideration the length of the detention, as degrading treatment in breach of Article 3 of the Convention. The Court also found a violation of Article 3 in the Muskhadzhiyeva and Others judgment (cited above, § 63) concerning four young children who were held, accompanied by their mother, for one month pending their removal. (ii) Application to the present case (α) In respect of the children 91. The Court observes that in the present case, as in Muskhadzhiyeva and Others, the applicant children were accompanied by their parents throughout the period of detention. It finds, however, that this fact is not capable of exempting the authorities from their duty to protect children and take appropriate measures as part of their positive obligations under Article 3 of the Convention (ibid., § 58) and that it is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). The European Union directive concerning the reception of aliens thus treats minors, whether or not they are accompanied, as a category of vulnerable persons particularly requiring the authorities’ attention (see paragraph 42 above). To be sure, children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court would, moreover, observe that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see, mutatis mutandis, Muskhadzhiyeva and Others, § 62). 92. The Court notes that during the period of detention in question, the applicant children were aged five months and three years, respectively. They were held for fifteen days at the Rouen-Oissel detention centre. 93. As regards the conditions of detention, the Court found that the Rouen-Oissel detention centre was among those “authorised” to receive families by the decree of 30 May 2005 (see paragraph 32 above). However, the Court observes that this text merely mentions the need to provide “bedrooms that are specially adapted, in particular for childcare” but does not expressly list the facilities required for the accommodation of families. Thus there are major discrepancies between the various centres in terms of the facilities provided, each centre’s director being responsible for such matters and free to take decisions, without having the support of staff specifically trained in education (see paragraph 32 above). 94. The applicants described the Rouen-Oissel centre as overcrowded and dilapidated, with a lack of privacy. The detainees lived in constant fear of being deported, thus exacerbating tension that was already acute ... 95. It can be seen from the reports of visits to the Rouen-Oissel centre ... that whilst the authorities had been careful to separate families from other detainees, the facilities available in the “families” area of the centre were nevertheless ill-adapted to the presence of children: no children’s beds and adult beds with pointed metal corners, no activities for children, a very basic play area on a small piece of carpet, a concreted courtyard of 20 sq.m. with a view of the sky through wire netting, a tight grill over the bedroom windows obscuring the view outside, and automatically closing bedroom doors with consequent danger for children. 96. The Commissioner for Human Rights and the CPT also raised the question of administrative detention centres being unsuited to the accommodation of families and to the needs of children, taking the view that, in addition to the ill-adapted material conditions, the lack of privacy, stress, insecurity and hostile environment in such centres also had harmful consequences for minors, at odds with the international principles on the protection of children. In response to this criticism, the French authorities acknowledged, in 2006, that the furnishings in family rooms were not always adapted to infants (see paragraphs 38 to 40 above). 97. The Court notes that such findings have also been made by certain appellate courts, which in various rulings have observed that confinement in conditions such as those in the present case caused “great emotional and mental suffering” to minors, and that the “abnormal living conditions” imposed on very small children “exceeded the threshold of seriousness for the purposes of Article 3 of the Convention” (see paragraphs 34 to 36 above). Having regard to the foregoing, the Court is of the opinion that the conditions in which the applicant children were held were not adapted to their age. 98. The Court reiterates that the detention of an alien must be carried out in good faith and the length of the detention should not exceed that reasonably required for the purpose pursued (see, mutatis mutandis, Saadi v. the United Kingdom [GC], no. 13229/03, § 74, ECHR 2008). The Court observes that the various international texts recommend that the authorities should be required to implement all necessary means to limit, as far as possible, the duration of the detention of minors ... 99. Domestic law stipulates that the length of detention for aliens pending removal should be limited to the time strictly necessary to organise their departure ... 100. In the present case, the Court finds that the length of detention of the children, over a period of fifteen days, whilst not excessive per se, could be perceived by them as never-ending, bearing in mind that the facilities were ill-adapted to their accommodation and age. 101. In addition, the applicants maintained that detention in this ill-adapted centre had subjected the children, especially the eldest, to a situation of stress that had entailed mental distress. The Court would observe, like the Government, that these allegations by the applicants have not been corroborated by any evidence. However, in view of its findings as to the unsuitability of the premises for the detention of children, the Court does not doubt that this situation created anxiety, psychological disturbance and degradation of the parental image in the eyes of the children. 102. It can be seen from the foregoing that the conditions in which the children were held, for fifteen days, in an adult environment, faced with a strong police presence, without any activities to keep them occupied, added to the parents’ distress, were manifestly ill-adapted to their age. The two children, a small girl of three and a baby, found themselves in a situation of particular vulnerability, accentuated by the confinement. Those living conditions inevitably created for them a situation of stress and anxiety, with particularly traumatic consequences. 103. Accordingly, in view of the children’s young age, the length of their detention and the conditions of their confinement in a detention centre, the Court is of the view that the authorities failed to take into account the inevitably harmful consequences for the children. It finds that the authorities’ treatment of the children was not compatible with the provisions of the Convention and exceeded the threshold of seriousness for Article 3 of the Convention to be engaged. There has therefore been a violation of that Article in respect of the children. (β) In respect of the parents 104. The Court would reiterate that the issue whether a parent qualifies as a “victim” of the ill-treatment of his or her child will depend on the existence of special factors which give the applicant’s suffering a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond – the particular circumstances of the relationship and the way in which the authorities responded to the parent’s enquiries. The essence of such a violation lies in the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of this latter factor that a parent may claim directly to be a victim of the authorities’ conduct (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 61, and Muskhadzhiyeva and Others, cited above, § 64). 105. As in the case of Muskhadzhiyeva and Others, the Court finds that, whilst the administrative detention of the applicants with their children in a centre could have created a feeling of powerlessness, together with anxiety and frustration, the fact that they were not separated from their children during the detention must have provided some degree of relief from those feelings, such that the threshold required for a violation of Article 3 has not been reached. Accordingly, there has been no violation of Article 3 of the Convention in respect of the parents. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 (f) AND 5 § 4 OF THE CONVENTION 106. The applicants argued that their administrative detention from 27 August to 12 September 2007 had taken place in conditions and for a duration that entailed a breach of Article 5 § 1 (f). The present case also raises an issue under Article 5 § 4. Those provisions read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” ... 2. Merits (a) The parties’ submissions 108. The applicants noted that a measure of removal or placement in detention could not, in principle, be taken against minors. As the measure concerned the parents and not the children themselves, the detention of children therefore had no legal basis or safeguards. 109. They added that the alternative of entrusting children to the care of a third party, as mentioned by the Government, was only a theoretical possibility as it would inevitably entail the separation of families for an indefinite duration. The applicants inferred that, for this reason, detention was not reasonably necessary. 110. The Government did not dispute the fact that the administrative detention of illegal immigrants constituted a restriction on their freedom of movement. They observed, however, that in the present case the detention had been imposed in a context of deportation, a situation that was provided for in Article 5 § 1 (f) of the Convention. The Government argued that administrative detention was prescribed by law and strictly supervised in domestic law. They were of the opinion that the French law on administrative detention had the “necessary qualities” and sufficient safeguards to preclude any risk of arbitrariness. 111. As regards the status of minors accompanying their parents, the Government pointed out that in the cases of Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhivyeva and Others, cited above, the Court took the view that the detention of minors in the context of Article 5 § 1 (f) was not unlawful per se provided there was some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. They recognised, however, that in the present case, the minor applicants had not been placed in detention on a personal basis and that minors were usually protected against any removal measure. The Government explained that this restriction did not, however, prevent a minor from accompanying his or her parents in the detention centre when they were affected by a measure of removal. 112. The Government added that parents placed in detention could always opt for the alternative of entrusting their children to the care of third parties. They insisted that, in any event, the Rouen-Oissel centre was specifically adapted to the children’s situation of vulnerability on account of their status and that their detention was thus compliant with the provisions of the Convention. 113. As to whether the applicants had a remedy, in accordance with Article 5 § 4 of the Convention, through which they could challenge the lawfulness of their detention, the Government observed that any individual who was placed in administrative detention by order of the prefect was entitled to challenge that decision before the administrative courts. During the detention, the liberties and detention judge reviewed its lawfulness after forty-eight hours and again after fifteen days. As regards the particular case of children who were not entitled to challenge a measure of detention that was not directed against them personally, the Government explained that parents could use such remedies on behalf of their minor children. 114. The Government observed that the liberties and detention judge of the Rouen tribunal de grande instance had ordered, on 29 August 2007, an extension of the detention for fifteen days, a decision that was upheld by the Rouen Court of Appeal on 30 August 2007. The ordinary courts had thus found that the applicants’ detention for the period in question was not excessive within the meaning of Article 5 of the Convention. (b) The Court’s assessment 115. The Court observes that the period under consideration, during which the applicants were placed in an administrative detention centre, lasted from 28 August to 12 September 2007. (i) Article 5 § 1 (f) of the Convention 116. The Court reiterates that all that is required for detention to be compatible with Article 5 § 1 (f) is that action is being taken with a view to deportation and that the detention is carried out for the purposes of enforcing the measure. It is therefore immaterial whether the underlying decision to expel can be justified under national or Convention law, or whether the detention was reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing. Deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress (see Chahal v. the United Kingdom, 15 November 1996, §§ 112-113, Reports of Judgments and Decisions 1996 ‑ V). 117. Whilst the general rule set out in Article 5 § 1 is that everyone has the right to liberty, Article 5 § 1 (f) provides an exception to that general rule, permitting States to control the liberty of aliens in an immigration context. As the Court has remarked before, subject to their obligations under the Convention, States enjoy an “undeniable sovereign right to control aliens’ entry into and residence in their territory” (see Chahal, cited above, § 73, and Saadi, cited above, § 64). 118. It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a)-(f), be “lawful” (see, among other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; Amuur, cited above, § 50; and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000 ‑ III). The Court has already stated, in two cases concerning similar facts, that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 102, and Muskhadzhivyeva and Others, cited above, § 73); lastly, the length of the detention should not exceed that reasonably required for the purpose pursued (see Saadi, cited above, § 74, and Rahimi, cited above, § 106). 119. In the present case, the members of the family were held in administrative detention on account of the illegality of their presence in France, on premises that were not adapted to the children’s extreme vulnerability (see paragraphs 66 et seq. above). The Court finds, as in the above-cited case of Muskhadzhivyeva and Others, that, in spite of the fact that they were accompanied by their parents, and even though the detention centre had a special wing for the accommodation of families, the children’s particular situation was not examined and the authorities did not verify that the placement in administrative detention was a measure of last resort for which no alternative was available. The Court thus finds that the French system did not sufficiently protect their right to liberty. 120. As regards the parents, however, the Court observes that Article 5 § 1 (f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary (see Chahal, cited above, § 112). 121. Consequently, the Court finds that there has been a violation of Article 5 § 1 (f) of the Convention in respect of the children. (ii) Article 5 § 4 of the Convention 122. The Court reiterates that the notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, such that the detained person is entitled to a review of his detention in the light not only of the requirements of domestic law but also of the text 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 breadth 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 Chahal, cited above, § 127; S.D. v. Greece, no. 53541/07, § 72, 11 June 2009; and Rahimi, cited above, § 113). 123. The Court observes that the applicant parents were able to challenge their detention before the domestic courts: they applied to the administrative court for the annulment of the decision imposing on them an obligation to leave the country and then, during the period of administrative detention, the liberties and detention judge and the Court of Appeal ruled on the lawfulness of the detention. In this connection, the Court notes that on 12 September 2007 the liberties and detention judge decided that the failure to enforce the applicants’ removal could not be attributed to them and annulled the detention. The Court cannot but infer from this that the parents had the possibility of using a remedy by which to obtain a decision on the lawfulness of their detention. There has not therefore been a violation of Article 5 § 4 in respect of the parents. 124. However, the Court notes that the law does not provide for the possibility of placing minors in administrative detention. As a result, children “accompanying” their parents find themselves in a legal vacuum, preventing them from using any remedies available to their parents. In the present case, there had been no order of the prefect for their removal that they could have challenged before the courts. Similarly, there had been no decision ordering their placement in administrative detention and the liberties and detention judge was therefore unable to review the lawfulness of their presence in the administrative detention centre. The Court thus finds that they were not guaranteed the protection required by the Convention. 125. Accordingly, there has been a violation of Article 5 § 4 of the Convention in respect of the children. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 126. The applicants complained, firstly, that the order for their removal to Kazakhstan had constituted a disproportionate interference with their right to a private and family life. They argued, secondly, that their placement in detention had not been a necessary measure in relation to the aim pursued and that the conditions and duration of their detention had constituted a disproportionate interference with their right to a private and family life. They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” ... B. The second head of the complaint ... 2. Merits (a) The parties’ submissions 130. The applicants argued that no aim could justify their placement in detention and that the measure had been disproportionate. They pointed out that they had provided sufficient guarantees that they would not abscond and could have been ordered to reside at a specific address; and whilst there was no question of separating parents from their children in the case of placement in detention, a compulsory residence order would nevertheless, in the present case, have been better suited to their situation. 131. The Government observed that the applicants had enjoyed material conditions of reception adapted to families and had been accommodated on premises that catered specially for that purpose. They further noted that the present case did not raise any issue of family reunification. (b) The Court’s assessment 132. The Court finds that there is no doubt as to the existence of “family life”, within the meaning of the Marckx v. Belgium case-law (13 June 1979, Series A no. 31), in the present case, and this has not in fact been disputed by the Government. Article 8 is thus applicable to the situation complained of by the applicants. 133. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities and this creates positive obligations inherent in effective “respect” for family life (see Maire v. Portugal, no. 48206/99, § 69, ECHR 2003 ‑ VII). States are under an obligation to “act in a manner calculated to allow those concerned to lead a normal family life” (see Marckx, cited above, § 31). 134. The Court is of the opinion that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see Olsson v. Sweden (no. 1), 24 March 1988, § 59, Series A no. 130), it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained. It finds that the fact of confining the applicants to a detention centre, for fifteen days, thereby subjecting them to custodial living conditions typical of that kind of institution, can be regarded as an interference with the effective exercise of their family life. 135. Such an interference entails a violation of Article 8 of the Convention unless it can be justified under paragraph 2 of that Article, that is, if it is “in accordance with the law”, pursues one or more of the aims enumerated in that provision, and is “necessary in a democratic society” for the fulfilment of the said aim or aims. 136. The Court observes that the legal basis for the detention of the parents was Article L. 554 ‑ 1 of the Entry and Residence of Aliens and Right of Asylum Code (CESEDA). 137. As regards the aim pursued by the measure in question, the Court observes that it was taken in the context of the prevention of illegal immigration and the control of the entry and residence of aliens. The decision could have been in the interests of national security or the economic well-being of the country or, just as equally, intended to prevent disorder or crime. The Court therefore concludes that the interference pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention. 138. The Court must further determine whether the family’s placement in detention, for a duration such as that in the present case, was necessary within the meaning of Article 8 § 2 of the Convention, that is to say, whether it was justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 80). 139. The Court would observe in this connection that the authorities have a duty to strike a fair balance between the competing interests of the individual and of society as a whole (see Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290). It emphasises that this balance should be guaranteed taking account of international conventions, in particular the Convention on the Rights of the Child (see, mutatis mutandis, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 120, 28 June 2007). The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled. 140. A measure of confinement must therefore be proportionate to the aim pursued by the authorities, namely the enforcement of a removal decision in the present case. It can be seen from the Court’s case-law that, where families are concerned, the authorities must, in assessing proportionality, take account of the child’s best interests. In this connection the Court would point out 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 Rahimi, cited above, § 108, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010). 141. Under the international Convention on the Rights of the Child (Article 3) the best interests of the child must be a primary consideration in all actions concerning children. Similarly, the “reception” directive (see paragraph 42 above), as transposed in the CESEDA legislation, provides expressly that member States must ensure that the child’s best interest is a primary consideration. It can also be seen from international reports (see above, under relevant international law) that the protection of the child’s best interests involves both keeping the family together, as far as possible, and considering alternatives so that the detention of minors is only a measure of last resort ... 142. The Court notes that the French practice of keeping families pending their deportation in detention centres has been criticised and that France is one of only three European countries which systematically have recourse to the detention of accompanied immigrant minors (see the report of the LIBE Committee, paragraph 44 above). 143. The Court further observes that since 1999 the UNHCR has invited States to study all alternatives to detention in the case of children accompanying their parents and to have recourse to detention only where there is no other means of keeping the family together ... 144. The Court notes, lastly, that the CNDS (National Commission for Ethics and Security) and the Défenseur des enfants (Children’s Defender) have, on various occasions, criticised the detention of children who have not committed any criminal offence, whether or not they are accompanied, calling for their best interests to be upheld. In their view, when the parents of minors are awaiting removal, a compulsory residence measure, or failing that, rented hotel accommodation, should be considered as a priority ... 145. In the present case, the applicants did not present any risk of absconding that required their detention. Their confinement in a secure centre did not therefore appear justified by a pressing social need, especially as their compulsory residence in a hotel during the first phase of their administrative detention does not seem to have caused any problems. 146. The Court finds that there is no indication in the material transmitted by the Government that any alternative to detention was envisaged, whether a compulsory residence measure or, as decided by the Maine-et-Loire prefecture, confinement in hotel accommodation (see paragraph 19 above). Neither does it appear that the authorities ever re-examined the possibility of confinement outside a detention centre during the period in question. Lastly, it does not appear from the facts of the case that the authorities took all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spent in detention. The applicants were held for fifteen days without any flight being arranged for them. 147. The Court is aware that a similar complaint was previously declared inadmissible, concerning the detention of four children with their mother for a period of one month, with no alternative to detention having been envisaged (see Muskhadzhivyeva and Others, cited above). However, in view of the foregoing and the recent developments in the case-law concerning the “child’s best interests” in the context of the detention of immigrant minors (see Rahimi, cited above), the Court cannot agree with the arguments of the Government claiming that the children’s best interests were upheld in the present case. The Court is of the view that the child’s best interests cannot be confined to keeping the family together and that the authorities have to take all the necessary steps to limit, as far as possible, the detention of families accompanied by children and effectively preserve the right to family life. In the absence of any indication to suggest that the family was going to abscond, the measure of detention for fifteen days in a secure centre appears disproportionate to the aim pursued. 148. Accordingly, the Court finds that the applicants sustained a disproportionate interference with their right to respect for their family life and that there has been a violation of Article 8 of the Convention. ... | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention in respect of the children. It found in particular that, although the children had been placed with their parents in a wing reserved for families, their particular situation had not been taken into account by the French authorities, who had not sought to establish whether any alternative solution, other than administrative detention, could have been envisaged. The Court also held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention concerning the children. In this respect, it noted in particular that, while the parents had had the possibility to have the lawfulness of their detention examined by the French courts, the children “accompanying” their parents had found themselves in a legal void, unable to avail themselves of such a remedy. In the present case no removal order had been issued against the children that they might have challenged in court. Nor had their administrative detention been ordered, so the courts had not been able to examine the lawfulness of their presence in the administrative detention centre. That being so, they had not enjoyed the protection required by the Convention. |
105 | Taking of children into care | II. RELEVANT DOMESTIC LAW AND PRACTICE A. German Basic Law ( Grundgesetz ) 24. Article 6 of the Basic law, in so far as relevant, reads as follows “(1) Marriage and the family shall enjoy the special protection of the State. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty. (3) Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect. ...” B. German Civil Code ( Bürgerliches Gesetzbuch ) 25. 31. Article 1666 of the German Civil Code reads, as far as relevant, as follows: “(1) Where the physical, mental or psychological best interests of a child or a child’s property are endangered and the parents do not wish, or are not able, to avert the danger, a family court must take the necessary measures to avert the danger. ... (3) The court measures in accordance with subsection (1) include in particular 1. instructions to seek public assistance, such as benefits of child and youth welfare and healthcare, 2. instructions to ensure that the obligation to attend school is complied with, 3. prohibitions to use the family home or another dwelling temporarily or for an indefinite period, to be within a certain radius of the home or to visit certain other places where the child regularly spends time, 4. prohibitions to establish contact with the child or to bring about a meeting with the child, 5. substitution of declarations of the person with parental authority, 6. part or complete removal of parental authority [ die teilweise oder vollständige Entziehung der elterlichen Sorge ].” 26. Article 1666a of the German Civil Code, in so far as relevant, reads as follows: “(1) Measures which entail separation of the child from his or her parental family are only allowed if other measures, including public support measures, cannot avert the danger ... (2) The right to care for a child may only be withdrawn if other measures have been unsuccessful or if it is to be assumed that they do not suffice to avert the danger.” 27. Article 1696 of the German Civil Code, in so far as relevant, reads: “(2) A measure under sections 1666 to 1667 or another provision of the Civil Code, which may only be taken if this is necessary to avert a danger to the child’s best interests or which is in the child’s best interests (measure under the law on child protection) must be cancelled if there is no longer a danger to the best interests of the child or the measure is no longer necessary.” 28. According to an earlier decision of the Federal Court of Justice (no. XII ZB 42/07, 17 October 2007), parents’ persistent refusal to send their children to a State primary school or an approved grant-aided independent school represents an abuse of parental authority which endangers the best interests of the children concerned and can necessitate that a family court takes measures under Articles 1666, 1666a of the Civil Code. A partial withdrawal of parental authority and the ordering of guardianship are in principle suitable for countering such an abuse of parental authority. The Federal Court of Justice also concluded that it might be appropriate for a guardian to be authorised to enforce the handing over of children, if need be by using force and by means of entering and searching the parents’ home, as well as by drawing on the assistance of the bailiff’s office or the police. C. Hesse School Act ( Hessisches Schulgesetz ) 29. Section 56 of the Hesse School Act reads, as far as relevant, as follows: “(1) All children, juveniles and young adults whose place of residence or habitual place of residence, or whose place of training or of work is in Hesse must comply with [the rules on] compulsory school attendance. (2) Compliance with [the rules on] compulsory school attendance entails attending a German school. Foreign pupils may also comply with [the rules on] compulsory school attendance by attending a State-approved school run by an independent body (supplementary school) which prepares them for the International Baccalaureate or the qualifications of a Member State of the European Union. The school supervisory authority shall take decisions on exemptions. Such decisions require important grounds. ...” 30. Section 60 of the Hesse School Act, in so far as relevant, reads as follows: “(1) Compliance with compulsory full-time school attendance entails attending a State primary and lower secondary school. (2) Alternatively, compliance with full-time school attendance may entail attending a grant aided independent school. Other teaching outside of school may be authorised by the school supervisory authority only for compelling reasons. ...” 31. The relevant part of section 67 of the Hesse School Act reads as follows: “(1) Parents are responsible for ensuring that school-age children regularly attend school and participate in educational activities. They are obliged to register and de-register school-age children at the competent school, if necessary to present themselves so that a decision may be taken regarding whether a school-age child is to be enrolled, and to provide school-age children with all they need to attend school. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 32. The applicants complained that the German authorities had violated their right to respect for family life as provided in Article 8 of the Convention by withdrawing parts of parental authority ( Entzug von Teilen des elterlichen Sorgerechts ) – including the right to determine the children’s place of residence ( Aufenthaltsbestimmungsrecht ) –, by transferring these parts to the youth office and by executing the withdrawal in the form of forcibly removing the children from the applicants and placing them in a children’s home for three weeks. Article 8 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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.” 33. The Government contested that argument. A. Admissibility 34. The Government submitted that the complaint as far as the decision taken by the youth office – in the exercise of the right to determine the children’s place of residence was transferred to the office – to take the children into care between 29 August and 19 September 2013 was inadmissible. The Government argued that the application received by the Court in April 2015 had been lodged after the expiry of the six-month time-limit set out in Article 35 § 1 of the Convention, which had begun to run from the children’s time in a children’s home between 29 August and 19 September 2013. 35. The applicants contested that argument. 36. The Court reiterates that the six-month time-limit provided for by Article 35 § 1 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. The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 40, 29 June 2012, with further references). Rule 47 of the Rules of Court closer defines the relevant date of introduction and reads, in so far as relevant: “[T]he date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark.” 37. The Court observes that the removal of the children constituted the execution of the Darmstadt Family Court’s decision of 6 September 2012 and is therefore intrinsically tied to that decision. The applicants appealed against the decision and exhausted the domestic remedies by lodging a constitutional complaint, which was not admitted for adjudication. The decision of the Federal Constitutional Court was served upon the applicants on 16 October 2014 (see paragraph 16 above). The applicants’ duly completed application form accompanied by copies of all relevant documents was sent to the Court on 16 April 2015. The Court therefore concludes that the applicants’ application was lodged within the six-month time-limit. 38. The Court also notes that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 39. The applicants submitted that the German authorities had interfered with the applicants’ right to respect for family life not only by partially withdrawing parental authority and transferring those rights to the youth office but also by enforcing the decision and placing their children in a children’s home for three weeks. Those interferences had not pursued a legitimate aim – in particular they had not aimed at the protection of the health, rights and freedoms of the children – as the children had been schooled and the removal from their parents and their family home had harmed them instead of protecting them. Moreover, the interferences had also not been necessary in a democratic society. Firstly, there had not been sufficient evidence of any risk to the children, let alone relevant and sufficient reasons to justify the removal and withdrawal of parental authority. Secondly, the authorities had not acted in the best interest of the children but had merely acted to prevent home schooling and to enforce the rules on compulsory school attendance. Thirdly, the authorities had not attempted less intrusive measures, had not worked towards reunification of the family and had not transferred the parental rights back to the applicants as soon as possible. Lastly, the decisions of the authorities had been based on misconceptions of home schooling and the wrong assumption that such schooling would lead to social isolation and a lack of education. These assumptions, however, had not been grounded in facts. 40. The Government accepted that the decision to withdraw, among other things, the applicants’ right to determine the children’s place of residence and the fact that their children had been subsequently forcibly separated from their parents had constituted interferences with the right to respect for the applicants’ family life. The interferences had been, however, in accordance with the law and had pursued the legitimate aim of protecting the health, rights and freedoms of the applicants’ children. Moreover, the interferences had been necessary in a democratic society. The German authorities had established, based on the information available at the relevant time, that the best interest of the children had been at risk and that this fact had required the partial withdrawal of parental authority. Despite compulsory school attendance, the children had not attended a State school for years. The schooling by, in particular, their mother had had to be regarded as inadequate, since the children had been taught only for five hours a day, interrupted by a lunch break, and, notwithstanding their different ages, all children had been taught together and the same curriculum. In addition, the children had had no regular contact with society and hardly any opportunity to meet children of their own age, for example during music lessons or in sports clubs, or to acquire social skills. They consequently had grown up isolated within their own family enclave, in which the applicants had ensured that their children had established a strong attachment to them, to the exclusion of others. The courts had therefore correctly assumed that a “symbiotic” family system had emerged. Further information had not been available to the authorities as the applicants had persistently resisted and prevented the children’s situation from being examined in detail by the youth office or the Education Authority. The domestic courts, in particular the Frankfurt am Main Court of Appeal, outlined these sufficient and relevant reasons in detail in their decisions. The courts had also assessed whether less severe measures had been available but had correctly concluded that, given the applicants’ previous conduct and persistent rejection of schooling outside their own home, which could not even be changed by criminal sanctions, no other measures had been available. Moreover, as soon as the learning assessment had been undertaken and the applicants had agreed to send their children to a public school, the children had been returned to their parents. 41. The third-party intervener Ordo Iuris submitted that according to the established case-law of the Court any interference with the right to family life and in particular with the mutual enjoyment by parent and child of each other’s company had to be oriented to the best interests of the child. On a procedural level, decisions had to be based on sufficient and relevant reasons, parents had to be involved in the proceedings and separation of children and parents should only be a measure of last resort and kept as short as possible. Ordo Iuris further argued that home-schooling as such could not justify removal of children from their parents and made extensive submissions – in particular concerning Article 2 of Protocol No. 1 to the Convention – regarding the protection of a right to home-schooling under the Convention. Similarly, the third party intervener European Centre for Law and Justice argued that home-schooling should be protected by the Convention under Article 2 of Protocol No. 1. 2. The Court’s assessment 42. At the outset, and having regard to the submissions of the parties and third parties, the Court finds it necessary to clarify the scope of the application. The Court notes that the application concerns the compatibility of a temporary and partial withdrawal of parental authority and the enforcement of this decision with Article 8 of the Convention. While the prohibition of home-schooling in Germany is an underlying issue of this complaint, the Court observes that it has already decided upon the compatibility of this prohibition with the Convention – in particular Article 8 and Article 2 of Protocol No. 1 - before (see, for example, Konrad and Others v. Germany (dec.), no. 35504/03, 11 September 2006; Dojan and Others v. Germany (dec.), nos. 319/08, 2455/08, 7908/10, 8152/10 and 8155/10, 13 September 2011; and Leuffen v. Germany, no. 19844/92, Commission decision of 9 July 1992) and that the respective part of the application has already been declared inadmissible (see paragraph 4 above). 43. The Court observes that the parties agreed that partially withdrawing parental authority, transferring those rights to the youth office and enforcing the decision by removing the applicants’ children from their parents’ home and placing them in a children’s home for three weeks, constituted interferences with the applicants’ right to respect for family life under Article 8 of the Convention. It is further also not in dispute that these interferences were based on Articles 1666, 1666a of the Civil Code (see paragraphs 25 and 26 above). The Court endorses these conclusions. 44. Such interferences constitute a violation of Article 8 unless they pursue a legitimate aim and can be regarded as “necessary in a democratic society”. In that context, the applicants argued that the interferences had not pursued legitimate aims, since taking the children into care had harmed them instead of protecting them. The Government however submitted that the authorities had acted with the aim of protecting the health, rights and freedoms of the applicants’ children. 45. The Court notes that Articles 1666, 1666a of the Civil Code (see paragraphs 25 and 26 above) are aimed at protecting the physical, mental or psychological best interests of a child. There is nothing to suggest that it was applied for any other purpose in the present case. Consequently, the Court is satisfied that the authorities acted in pursuit of the legitimate aims of protecting “health or morals” and “rights and freedoms of others”. 46. The question of whether the interference was “necessary in a democratic society” requires consideration of whether, in the light of the case as a whole, the reasons adduced to justify the measure were “relevant and sufficient”. Article 8 requires that a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent (see Elsholz v. Germany [GC], no. 25735/94, §§ 48, 50, ECHR 2000 ‑ VIII; T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 70, ECHR 2001 ‑ V (extracts); Hoppe v. Germany, no. 28422/95, §§ 48, 49, 5 December 2002; and Wetjen and Others v. Germany, nos. 68125/14 and 72204/14, § 68, 22 March 2018). 47. In considering the reasons adduced to justify the measures in question the Court will give due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation (see Kutzner v. Germany, no. 46544/99, § 66, ECHR 2002 ‑ I). The margin of appreciation will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit ( K. and T. v. Finland [GC], no. 25702/94, § 155, ECHR 2001 ‑ VII; Mohamed Hasan v. Norway, no. 27496/15, § 145, 26 April 2018). The Court reiterates that the authorities enjoy a wide margin of appreciation when assessing the necessity of taking a child into care (see K. and T. v. Finland, cited above, § 155). In addition, the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area. However, consideration of what is in the best interest of the child is in any event of crucial importance (see Kutzner, cited above, § 66). 48. Turning to the facts of the present case, the Court reiterates that the fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents’ right under Article 8 of the Convention to enjoy family life with their child (see K. and T. v. Finland, cited above, § 173). 49. It also notes that the German courts justified the partial withdrawal of parental authority by citing the risk of danger to the children. The courts assessed the risk on the persistent refusal of the applicants to send their children to school, where the children would not only acquire knowledge but also learn social skills, such as tolerance or assertiveness, and have contact with persons other than their family, in particular children of their own age. The Court of Appeal further held that the applicants’ children were being kept in a “symbiotic” family system. 50. The Court further reiterates that it has already examined cases regarding the German system of imposing compulsory school attendance while excluding home education. It has found it established that the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems (see Konrad and Others; Dojan and Others; and Leuffen; all cited above). 51. The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system. 52. In so far as the applicants submitted that the learning assessment taken by the children had shown that the children had had sufficient knowledge, social skills and a loving relationship with their parents, the Court notes that this information was not available to the youth office and the courts when they decided upon the temporary and partial withdrawal of parental authority and the taking of the children into care. In contrast, having regard to the statements of, in particular, Mr. Wunderlich – for example that he considered children to be the ‘property’ of their parents – and on the information available at the time, the authorities reasonably assumed that the children were isolated, had no contact with anyone outside of the family and that a risk to their physical integrity existed (see paragraphs 10, 18 and 23 above). The Court also reiterates that even mistaken judgments or assessments by professionals do not per se render childcare measures incompatible with the requirements of Article 8. The authorities – both medical and social – have a duty to protect children and cannot be held liable every time genuine and reasonably-held concerns about the safety of children vis-à-vis members of their families are proved, retrospectively, to have been misguided (see R.K. and A.K. v. the United Kingdom, no. 38000/05, § 36, 30 September 2008). The Court would also add that the unavailability of this information was based on the applicants’ resistance to have the learning assessment conducted prior to the removal of the children. 53. To assess whether the reasons adduced by the domestic courts were also sufficient for the purposes of Article 8 § 2, the Court will have to determine whether the decision-making process, seen as a whole, provided the applicants with the requisite protection of their interests (see, inter alia, T.P. and K.M. v. the United Kingdom, cited above, § 72, and Süß v. Germany, no. 40324/98, § 89, 10 November 2005). The Court observes that the Darmstadt Family Court heard testimony from the applicants, their children and the youth office and appointed a guardian ad litem for the children to represent their interests. In addition, the applicants submitted extensive written pleadings to the domestic courts. The Court is therefore satisfied that the applicants, represented by legal counsel, were in a position to put forward all their arguments against the temporary and partial withdrawal of parental authority and that the procedural requirements implicit in Article 8 of the Convention were complied with. 54. Lastly, the Court has to examine whether the decisions to withdraw parts of the parents’ authority and to take the children into care were proportionate. The domestic courts gave detailed reasons why less severe measures than taking the children into care were not available. They held, in particular, that the prior conduct of the applicants and their persistent resistance to measures had shown that merely issuing instructions would be ineffective. The Court notes that not even prior administrative fines had changed the applicants’ refusal to send their children to school. It therefore finds, in the circumstances of the present case, the conclusion by the domestic courts acceptable. 55. The Court would further reiterate that the seriousness of measures which separate parent and child requires that they should not last any longer than necessary for the pursuit of the child’s rights and that the State should take measures to rehabilitate the child and parent, where possible (see T.P. and K.M. v. the United Kingdom, cited above, § 78, with further references). In that regard it notes that the children were returned to their parents after the learning assessment had been conducted and the applicants had agreed to send their children to school. The Court therefore concludes that the actual removal of the children did not last any longer than necessary in the children’s best interest and was also not implemented in a way which was particularly harsh or exceptional (see K. and T. v. Finland, cited above, § 173). In that regard, the Court also observes that the applicants did not complain about the placement of their children in a particular facility or the treatment of their children while in care. 56. In so far as the applicants complained that the partial withdrawal of parental authority had only been lifted in August 2014, the Court notes that, after the first learning assessment, a further in ‑ depth long-term assessment of the children’s development was necessary, which required continuous attendance at school. Furthermore, the Court finds that the existence of the non-enforced decision did not impose any identifiable actual prejudice (compare R.K. and A.K. v. the United Kingdom, cited above, § 38). 57. The foregoing considerations are sufficient to enable the Court to conclude that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home. The domestic authorities struck a proportionate balance between the best interests of the children and those of the applicants, which did not fall outside the margin of appreciation granted to the domestic authorities. 58. There has accordingly been no violation of Article 8 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found in particular that the enforcement of compulsory school attendance in order to ensure the children’s integration into society was a relevant reason for justifying the partial withdrawal of parental authority. It also found that the authorities had reasonably assumed that the children were isolated, had had no contact with anyone outside of the family and that a risk to their physical integrity had existed. The Court held that the actual removal of the children had not lasted any longer than was necessary to ensure the children’s best interests. It therefore concluded that there were “relevant and sufficient” reasons for the withdrawal of some parts of the parents’ authority and the temporary removal of the children from their family home. |
395 | Medical care / treatment during hunger strike | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Domestic law 59. On the basis of section 68 ( 4 ) of the 1997 Aliens Act ( Fremdengesetz ) and section 53 (c) ( 6 ) of the Execution of Sentences Act ( Strafvollzugsgesetz ) – both as in force at the relevant time – the Federal Minister for the Interior issued the ordinance on people held in detention by the police ( Verordnung des Bundesministers für Inneres über die Anhaltung von Menschen durch die Sicherheitsexekutive, Anhalteordnung, Federal Law Gazette II no. 128/1999 – hereinafter “the Detention Ordinance”). Within the context of the present case the following provisions of that regulation are relevant: Scope of the applicationSection 1 “ ( 1 ) The present regulation applies to persons in detention, who are detained after having been arrested by organs of the public security service, or who have started to serve their prison sentence on the basis of a detention order ( [that is to say] prisoners). ... ” DetentionSection 4 “ ( 1 ) Prisoners are to be held with regard being had to human dignity and with the greatest possible care [being exercised towards] their person. ... ” Solitary confinementSection 5 “ ( 1 ) Detention in solitary confinement must take place: 1. where there are facts justifying the assumption that the detainee is endangering the health of others through [engaging in] violence; ... 3. where there is a danger of infection from the detainee or where the detainee, on account of his or her appearance or conduct, objectively represents a significant burden for other detainees. ( 3 ) Detention in solitary confinement may [be imposed] : ... 3. as a disciplinary measure; 4. where it is necessary for a short time for organisational reasons; 5. where there are facts justifying the assumption that the detainee is endangering his or her own life or health through [engaging in] violence. ... ” Fitness for detention [ Haftfähigkeit ] Section 7 “ ( 1 ) Prisoners must not be detained if their unfitness for detention is detected or obvious. ... ( 3 ) All prisoners have to be examined without delay by a medical doctor with regard to their fitness for detention, at the latest within twenty-four hours of their arrest. They must submit to a medical examination, [which is] necessary to establish their fitness for detention. If prisoners refuse to be examined, it must be assumed that they are fit for detention, as long as they do not show any symptoms of disease or injury, and if there are no other reasons to doubt their fitness for detention. ... ” Medical care for detaineesSection 10 “ ( 1 ) The necessary medical care for prisoners is to be ensured by public health officers [ Amtsarzt ] or otherwise by means of precautionary measures [which] ensure that a doctor can intervene without unnecessary delay. Regarding minor cases, medical assistance may be provided by a paramedic [ Sanitäter ]. ( 2 ) Prisoners who have already been declared fit for detention ... shall immediately be seen by a doctor where there are reasons to doubt their continued fitness for detention, in particular if a prisoner alleges that he is unfit. The state of health of injured or ill prisoners who have been declared fit for detention shall be assessed by a doctor in order that any deterioration shall be noted in a timely manner; if such deterioration gives rise to doubt as to his or her fitness for detention, the opinion of a public health officer is to be sought. ... ... ( 4 ) Prisoners who go on hunger strike in order to render themselves unfit for detention must be seen by a doctor without unnecessary delay; the latter has to determine (and inform the prisoner of) what is medically required. In particular, it is to be decided if such prisoners are to be held in single - occupancy medical cells ... ” 60. Article 47 of the Code of Criminal Procedure ( Strafprozessordnung ), as in force at the relevant time, reads as follows: “1 Any person whose rights have been violated by a criminal offence or by an offence that is prosecutable ex officio can join the criminal proceedings [at any time before] the beginning of the trial hearing in the light of claims that he/she may have under private law, thus becoming a private party to the proceedings. 2 Such a private party has the following rights: (1) He/she can provide the public prosecutor and the investigating judge with anything that could be used] to convict the defendant or to substantiate a claim for compensation. (2) He/she can inspect the [ material in the case file ] during the preliminary investigation and the preliminary examination, unless there are extraordinary reasons to the contrary. (3) The private party is summoned to the trial hearing on the understanding that in the event of his/her non-appearance, the trial will nevertheless take place and the requests contained in the case file lodged by him/her will be read out. He/she can ask the accused, witnesses and experts questions or, in order to make other statements, can speak during the trial. Immediately after the Public Prosecutor has submitted and substantiated his/her final motion, the private party will be entitled to speak at the end of the hearing in order to specify and substantiate his/her claims and to lodge requests intended by him/her to be determined in the main ruling.” 61. Under Article 48 § 1 (1) of the Code of Criminal Procedure, as in force at the relevant time, a private party was entitled – after being informed to that effect – to bring a charge if the public prosecutor had dismissed the charge and refused to prosecute the offender. 62. Under Article 129a § 1 (2) of the Federal Constitution, as in force at the relevant time, the Independent Administrative Panels were to decide on any complaints lodged by persons alleging a violation of their rights on account of the administrative authorities exercising their direct authority to engage in coercion. B. Domestic practice 1. Domestic practice relating to detainees on hunger strike at the time of Y.C. ’ s detention 63. Under an ordinance issued by the Ministry of the Interior on 7 June 2000, a detainee announcing or starting a hunger strike must be given an information sheet ( Infoblatt bei Hungerstreik ) in a language that he or she understands. That information sheet, which was prepared by the Ministry of the Interior ’ s medical service upon the recommendation of the Committee for the Prevention of Torture (CPT) after a visit that it paid to Austria in 1999, contains information on the dangers of a hunger strike ( such as the health risks – including unconsciousness and death – that can result from insufficient fluid intake ). 64. With the aim of securing the uniform and improved medical treatment of detainees on hunger strike, the Ministry of the Interior organised consultations with its medical service and with various NGOs. The resulting recommendations served as a basis for further ordinances issued on 4 January 2002 and of 28 October 2002. These ordinances required police detention centres, after being notified of a hunger strike, to ensure without undue delay the undertaking of a preliminary examination of the hunger striker in question by a police doctor in the presence of an interpreter or an official conversant in the language of the detainee. The individual critical weight of the person on hunger strike had to be determined during such a first examination on the basis of his or her weight at the outset of the hunger strike. In the event that a hunger striker was of normal weight or was overweight and enjoyed good health, the benchmark for determining the critical weight of a hunger striker was to be 20 % of his weight, as recorded at the outset of his hunger strike; in the event that a hunger striker was in poor physical condition the benchmark was to be 10%. A urine test was recommended. A documented clinical examination of all the parameters set out in the hunger-strike form – together with a documented assessment of arterial oxygen saturation – had to be carried out on a daily basis. 65. In the event that a detainee reached his or her individually calculated critical weight, additional checks had to be carried out every other day in respect of blood sugar, packed cell volume, and urine – including measurements of protein and red blood cells. When the critical weight was reached, it was recommended that supplementary blood samples be taken at shorter intervals and that the person concerned be taken to a hospital. 66. The assistance of a psychiatrist was to be ordered in individual cases if this was considered necessary in the light of the detainee ’ s mental state, as assessed during the first interview, or because of deterioration in his or her mental health in the course of his or her detention. After fourteen days of a hunger strike, the assistance of a psychiatrist was in any event obligatory. 2. Domestic practice relating to detainees on hunger strike after Y.C. ’ s death 67. After Y.C. ’ s death, an ordinance was issued on 6 October 2005 reiterating and specifying the measures to be taken in the event of a hunger strike being staged by a detainee in a police detention centre. 68. On 20 October 2005 all detention centres ’ medical services were informed on the basis of the latest findings regarding sickle cell disease that in the event of a hunger or thirst strike being staged by persons from countries where sickle cell disease was endemic, a complete blood count and a differential blood count had to be taken. THE LAW I. THE GOVERNMENT ’ S OBJECTION TO THE ADMISSIBILITY OF THE APPLICATION 70. The Government submitted – in respect of both complaints lodged by the applicant under Articles 2 and 3 of the Convention (see paragraphs 74 and 102 below) – that he had failed to exhaust the domestic remedies. After the public prosecutor had decided to discontinue the criminal investigation into Y.C. ’ s death, the applicant ’ s counsel had been informed in writing that the applicant had the possibility to take over the prosecution as a subsidiary prosecutor ( Subsidiärankläger ), in accordance with Article 48 § 1 (1) of the Code of Criminal Procedure. This legal remedy had been accessible, suitable and sufficient for the alleged violations of the Convention to be redressed. However, the applicant had not made use of this possibility, and had thus failed to comply with the admissibility requirement stipulated in Article 35 § 1 of the Convention. 71. The applicant contested this argument. While admitting that he had not made use of this remedy, he explained firstly that to conduct criminal proceedings as a subsidiary prosecutor, he would have had to accept the risk of having to bear the full costs of such proceedings. Secondly, he submitted that at that time he had already raised all relevant arguments in relation to Y.C. ’ s death during the proceedings before the IAP, and that a positive decision in those proceedings would, in his view, necessarily have led to the reopening of the criminal investigation. Thirdly, the applicant argued that by requiring him to act as a prosecutor in the investigation into his brother ’ s death, the Government ’ s obligation to investigate and prosecute criminal acts ex officio in all possible directions would have been shifted to him. He concluded that the remedy of taking over the prosecution as a subsidiary prosecutor had not been one that he could have reasonably been expected to take. 72. The Court is not convinced that requesting a preliminary investigation under Article 48 § 1 (1) of the Code of Criminal Procedure would have constituted an effective remedy in the circumstances of the instant case. The Government has not brought forward any convincing arguments in that respect or quoted domestic case-law to demonstrate that in a comparable case this remedy has proven to be effective. In the light of the fact that the public prosecutor did not find any reason to continue the preliminary investigation, and given that there were not even any concrete suspects ( since the investigation was directed against “unknown persons” ), it appears unlikely that a request to continue the proceedings would have had any prospect of success. The Court agrees in any event with the applicant that requesting him to pursue this remedy would have inappropriately shifted the duty stipulated by Articles 2 and 3 of the Convention to conduct an effective investigation from the Government to the applicant. The procedural obligation to investigate alleged ill-treatment and a death in police custody under these provisions clearly lies with the authorities, who must act of their own motion once the matter has come to their attention. The authorities 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, mutatis mutandis, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 111, ECHR 2005 ‑ VII). The Court therefore dismisses the Government ’ s objection regarding the admissibility of the application in respect of the exhaustion of domestic remedies. 73. Furthermore, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds, and must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 74. The applicant complained under the procedural limb of Articles 2 and 3 of the Convention that there had not been an effective and comprehensive investigation into his brother ’ s death, and that the causes of Y.C. ’ s death thus far remained unclear. The Court considers it appropriate to assess this complaint under the procedural limb of Article 2 of the Convention alone. Article 2 reads as follows in its relevant parts : “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ... .” A. The parties ’ submissions 1. The applicant 75. The applicant submitted that, contrary to what the forensic expert report commissioned by the IAP had stated, his brother had not died as a result of dehydration combined with the fact that he had been a carrier of sickle cell trail, but because the doctor at the detention centre had inaccurately calculated Y.C. ’ s critical weight. The applicant relied in this respect on Dr W. G. ’ s statement, which he had submitted as evidence to the IAP in the course of the public hearing on 13 February 2006 (see paragraphs 38 and 44 above). The applicant complained that Dr W. G. ’ s findings had not been taken into account. The applicant concluded from W.G. ’ s statement that if the police doctor had not made a mistake in the calculation of Y. C. ’ s critical weight, his brother would still be alive. 76. The applicant concluded that the outcome of the investigation into Y.C. ’ s death had been neither correct nor thorough, in violation of Article 2 of the Convention. 2. The Government 77. The Government took the view that the criminal investigation into Y.C. ’ s death had been conducted expeditiously and effectively, in accordance with the Court ’ s case-law. To secure evidence regarding the circumstances of Y.C. ’ s death, the investigating judge had ordered an autopsy, as requested by the public prosecutor, on 4 October 2005 ( the very day of Y.C. ’ s death ). On the following day the blood sample from Y.C. and the related examination report had been seized and the OIA had been asked to investigate the facts. Shortly thereafter, the persons directly involved had been questioned extensively. The taking of evidence had been supplemented by the obtaining of an independent expert report on the results of the autopsy. The expert had informed the public prosecutor on 12 October 2005 of the results of the autopsy. 78. The Government stated that the criminal investigation had, moreover, been independent, as it had been subject to the supervision of an investigating judge, who had been independent not only of the public prosecutor, but also the administration in general. 79. As to the participation of relatives in the investigation, the Government submitted that the applicant had been able to join the criminal proceedings at the investigative stage as a private party, in accordance with Article 47 of the Code of Criminal Proceedings. This status had given him the right to lodge requests to be permitted to inspect the files and to participate in the criminal investigation and the establishment of facts, and that evidence be gathered. 80. In sum, the Government considered that there had been an efficient, independent and transparent investigation aimed at determining criminal liability in connection with Y.C. ’ s death. 81. The Government submitted that the circumstances of Y.C. ’ s death had also been the subject of ensuing administrative proceedings, namely to examine the question of whether Y.C. ’ s death had been caused by a lack of adequate medical treatment while in detention pending expulsion. The IAP had based its decision on findings which had relied on the results of two oral hearings during which the police officers concerned, a further medical expert and the detainee sharing a cell with Y.C. had been questioned extensively about the course of Y.C. ’ s hunger strike and his medical treatment. Moreover, the Human Rights Advisory Board had carried out an independent review of the police investigation and published the results in a report (see paragraph 27 above). B. The Court ’ s assessment 1. General principles 82. The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). 83. Persons in custody are in a vulnerable position and the authorities are under a duty to protect them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 131, ECHR 2014). Where an individual is taken into custody in good health but later dies, it is incumbent on the State to provide a satisfactory and convincing explanation of the events leading to his death (see Carabulea v. Romania, no. 45661/99, § 108, 13 July 2010) and to produce evidence casting doubt on the veracity of the victim ’ s allegations, particularly if those allegations are backed up by medical reports (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V, and Abdülsamet Yaman v. Turkey, no. 32446/96, § 43, 2 November 2004). 84. The State ’ s duty to safeguard the right to life must be considered to involve not only the taking of reasonable measures to ensure the safety of individuals in public places but also, in the event of serious injury or death, having in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 132). 85. Having regard to its fundamental character, Article 2 of the Convention contains a procedural obligation – as described below – to carry out an effective investigation into alleged breaches of its substantive limb (see Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII, and Giuliani and Gaggio, [GC], no. 23458/02, § 298, ECHR 2011). 86. The State ’ s obligation to carry out an effective investigation has in the Court ’ s case-law been considered as an obligation inherent in Article 2, which requires, inter alia, that the right to life be “protected by law”. Although the failure to comply with such an obligation may have consequences for the right protected under Article 13, the procedural obligation of Article 2 is seen as a distinct obligation (see, inter alia, Šilih v. Slovenia [GC], no. 71463/01, §§ 153 ‑ 154, 9 April 2009). It can give rise to a finding of a separate and independent “ interference ”. This conclusion derives from the fact that the Court has consistently examined the question of procedural obligations separately from the question of compliance with the substantive obligation (and, where appropriate, has found a separate violation of Article 2 on that account) and the fact that on several occasions a breach of a procedural obligation under Article 2 has been alleged in the absence of any complaint as to its substantive aspect ( ibid., §§ 158-159). 87. The question of whether an investigation has been sufficiently effective must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Dobriyeva and Others v. Russia, no. 18407/10, § 72, 19 December 2013; and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 147). 88. In order to be “effective” as this expression is to be understood within 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). That is to say it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible. The obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incident at issue (see Jaloud v. the Netherlands [GC], no. 47708/08, § 186, ECHR 2014, and Nachova and Others, cited above, § 160). 89. In any event, 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, among other things, 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 responsible will risk falling foul of this standard (see Giuliani and Gaggio, cited above, § 301 ). 90. In particular, the investigation ’ s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines to a decisive extent the investigation ’ s ability to establish the circumstances of the case and, where appropriate, the identity of those responsible (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009). 91. 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. It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110, ECHR 1999-IV, and Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000 ‑ VI). 92. Moreover, the persons responsible for the investigation should be independent of anyone implicated or likely to be implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Anguelova v. Bulgaria, no. 38361/97, § 138, ECHR 2002 ‑ IV). 93. A requirement of promptness and reasonable expedition is implicit within this context (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, ECHR 2011 ). 94. In addition, the investigation must be accessible to the victim ’ s family to the extent necessary to safeguard their legitimate interests. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case (see Hugh Jordan v. the United Kingdom, no. 24746/94, § 109, ECHR 2001 ‑ III). The requisite access of the public or the victim ’ s relatives may, however, be provided for at other stages of the procedure (see, among other authorities, Giuliani and Gaggio, cited above, § 304, and McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001 ‑ III). In addition, 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 Ramsahai and Others, cited above, § 348, and Velcea and Mazăre v. Romania, no. 64301/01, § 113, 1 December 2009). 95. Lastly, the Court considers it useful to reiterate that, when it comes to establishing the facts, and sensitive to the subsidiary nature of its role, 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 Ataykaya v. Turkey, no. 50275/08, § 47, 22 July 2014, and Leyla Alp and Others v. Turkey, no. 29675/02, § 76, 10 December 2013). 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 it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no 247-B). Although the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Giuliani and Gaggio, cited above, § 180, and Aydan v. Turkey, no. 16281/10, § 69, 12 March 2013). 2. Application to the present case 96. The Court notes at the outset that under Article 2 of the Convention, the applicant did not allege that Y.C. had died as a result of the use of force by the authorities. He complained of an insufficient investigation into his brother ’ s death. The Court ’ s task therefore consists of examining whether the guarantees under the procedural limb of Article 2 of the Convention have been respected – namely whether the authorities have complied with their duty to carry out an effective and comprehensive investigation in respect of Y.C. ’ s case (see also paragraph 74 above). The Court considers that the complaint raised by the applicant regarding the allegedly inaccurate calculation of Y.C. ’ s critical weight – and, more generally, the medical treatment afforded to Y.C. during his hunger strike – fall to be examined under the substantive limb of Article 3 of the Convention (see paragraphs 115 - 123 below). 97. The Court reiterates that a criminal investigation was opened by the public prosecutor on the day of Y.C. ’ s death. The Court finds that the steps taken by the public prosecutor were carried out promptly and without unnecessary delays. All relevant witnesses were questioned, evidence was immediately secured and seized, and an expert report concerning the cause of death was ordered. It was not disputed by the applicant that the expert Dr H. had been independent. The applicant, as a member of Y.C. ’ s family, was able to join the proceedings as a private party. The Court cannot discern any indication of shortcomings in the public prosecutor ’ s investigation. The criminal investigation was ultimately closed by the public prosecutor as no sufficient evidence was found to indicate misconduct on the part of the persons in charge. The public prosecutor thereby relied on the comprehensive autopsy report and expert report issued by Dr H. (see paragraphs 30 - 33 above), which clearly stated that death through the use of force could be excluded, and that Y.C. had in fact died of dehydration, combined with the fact that he had been a carrier of sickle cell trait (see paragraph 33 above). 98. The applicant also instituted administrative proceedings before the IAP for a review of the lawfulness of Y.C. ’ s detention and lodged a complaint about the conditions of his detention. In the course of these proceedings, several witnesses and two experts were questioned. The IAP examined the evidence and delivered three decisions, two of which were quashed by the Administrative Court. While the IAP found that the authorities should have known that Y.C. came from a country whose inhabitants bore a high likelihood of being a carrier of sickle cell disease and therefore should have informed Y.C. of this potential risk after he had embarked upon his hunger strike, the Administrative Court found that the mere fact that a person came from a country with a high rate of sickle cell disease did not mean that the State had a duty to test every person from a certain area for this genetic predisposition. After obtaining a second expert report, the IAP eventually acted in accordance with the legal opinion of the Administrative Court and dismissed the applicant ’ s complaints. 99. The Court notes in relation to the administrative proceedings that they were equally comprehensive as the criminal proceedings. Relevant witnesses were heard, an additional expert report was obtained, and the applicant played an active role in those proceedings, was able to lodge requests, and had access to the case file. Again, the independence of the court-appointed expert was at no point called into question by the applicant. However, he did submit as evidence a statement which focused on the calculation of Y.C. ’ s critical weight and possible mistakes which allegedly were made in that respect. The Court, contrary to the applicant ’ s allegation in that respect (see paragraph 75 above), sees no indication from the documents at hand that the IAP did not take into account the statement. The applicant was able to submit it as evidence in the course of the IAP proceedings, and the question of Y.C. ’ s critical weight was discussed with the expert Dr L. during the hearing of 21 June 2012 (see paragraph 55 above). In addition, the expert Dr H. concluded that the cause of Y.C. ’ s death had been dehydration, combined with the fact that he had been a carrier of sickle cell trait, and his death could therefore only have been prevented if he had been tested earlier for sickle cell trait, or if he had been aware that he was a carrier thereof. The expert Dr L. equally found that the calculation of the critical weight had had no bearing on Y.C. ’ s death. In its subsequent decision, the IAP ultimately decided to follow Dr L. ’ s expert report rather than the statement of Dr W. G. (see paragraph 44 above). The Court sees no reason to question the domestic courts ’ decision to ascribe decisive importance to these findings, rather than relying on the statement of Dr W.G. The Court recalls within this context that it is not its task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, among other authorities, Edwards, cited above, § 34). 100. As to the applicant ’ s argument that the domestic authorities erred in finding that they had not been under a duty to test Y.C. for sickle cell disease merely because he came from a high-risk area, the Court notes first of all that apparently not even Y.C. had been aware of his being a carrier of sickle cell trait, and secondly finds no ground for disagreeing with the Administrative Court that the authorities had not been under an obligation to conduct medical tests without there being a clear indication or necessity to that end (see paragraph 48 above). 101. The Court therefore concludes that the manner in which the investigation into Y.C. ’ s death was carried out by the domestic authorities does not give rise to a violation of Article 2 of the Convention under its procedural limb. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 102. The applicant complained that the medical assistance to his brother during his hunger strike had not been in accordance with the law ( section 10 ( 1 ) and ( 4 ) of the Detention Ordinance ). Furthermore, because (i) Y.C. had been kept in detention even though he had no longer been fit to be so held, and (ii) had been placed just before his death in a security cell without a water outlet, his brother had been subjected to inhuman and degrading treatment. The applicant relied on Article 3 of the Convention, which reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 103. The Court considers that these complaints fall to be examined under the substantive limb of Article 3 of the Convention alone. A. The parties ’ submissions 1. The applicant 104. The applicant submitted observations concerning Y.C. ’ s medical care in relation to his complaint under Article 3 of the Convention that were similar to those that he submitted in relation to his Article 2 complaint (see paragraph 75 above). He added that the police had not recognised that Y.C. had already been on hunger strike for several days before he had announced it. Therefore, during these days the authorities had not followed the applicable regulations. Intensive medical care should have been provided in the days before Y.C. ’ s death, as he had been in a life-threatening condition because of the inaccurate calculation of his critical body weight. Instead, he had been placed alone in a security cell. The applicant concluded that Article 3 of the Convention had been violated because of the inhuman situation that Y.C. had been in. 2. The Government 105. The Government contended that the medical care afforded to Y.C. between 28 September and 4 October 2005 had been adequate. This could be seen from the fact that the first examination had been carried out by the police doctor directly after Y.C. ’ s announcement of his hunger strike and that the ensuing daily medical check-ups had continued until his death ( contrast Nevmerzhitsky v. Ukraine, no. 54825/00, §§ 103-104, ECHR 2005 ‑ II (extracts)). The clinical examinations carried out within this context were based on the ordinance issued by the Ministry of the Interior regarding the medical measures to be taken in the event of a hunger strike ( contrast Palushi v. Austria, no. 27900/04, § 72, 22 December 2009). The doctors treating Y.C. had been able to communicate with him in English without problems. When Y.C. had refused to be examined by the police doctor on 4 October 2005, he had immediately been transferred to a public hospital for a complete clinical evaluation ( contrast Aleksanyan v. Russia, no. 46468/06, §§ 151-158, 22 December 2008). 106. The Government submitted that Y.C. had therefore been subject to an extensive medical examination at a public hospital only a few hours before his death. According to the report issued by the clinic, Y.C. had by no means been in grave danger at the time of his examination there, and there had been no indication of a life-threatening situation. There had therefore been no indication that Y.C. should have been admitted by the hospital as an in-patient. As the autopsy report had shown, Y.C. had ultimately died as a result of dehydration, combined with the fact that he had been a carrier of sickle cell disease; the fact that he had been a carrier of sickle cell trait had been known neither to him nor the authorities. Until Y.C. ’ s death, the Austrian authorities had had no experience regarding the health risk emanating from this anomaly of the blood cells within the context of a hunger strike. 107. The Government stated that the IAP had conducted a detailed and thorough investigation with the assistance of sworn medical experts. The Administrative Court had considered it an established fact that under the given circumstances, the competent authorities had not been required to know about the direct danger to Y.C. ’ s life and health posed by sickle cell disease, and that the need for a prophylactic blood test for the detection of this anomaly had not been medically indicated at any time. 108. When it came to the applicant ’ s complaint that Y.C. had been placed in a security cell, the Government submitted that the applicant had not presented any arguments concerning the condition of the cell, but had merely stated that there had been no legal basis for that measure. The Government stated that the legal basis could be found in section 5 of the Detention Ordinance as Y.C. had been endangering his own health and that of others by violence. He had also been a significant burden on other detainees as he had already exhibited very aggressive behaviour during his examination in hospital (see paragraph 17 above). Moreover, Y.C. could have requested a water bottle at any time, there had been a mattress on the floor, and natural light had entered through two barred windows. Given the adequacy of the equipment in the cell and the short duration (less than two hours) of Y.C. ’ s detention there, the intensity of the separation measure had not attained such a level of severity as to bring his detention in the security cell within the scope of Article 3 of the Convention (see, mutatis mutandis, Valašinas v. Lithuania, no. 44558/98, § 112, ECHR 2001 ‑ VIII). 109. The Government considered that the fact that Y.C. had been on hunger strike at that time could not change this assessment. The present case differed in several aspects from the facts underlying the case of Palushi ( cited above ), as adequate measures had been taken to supervise Y.C. ’ s stay in the security cell by carrying out checks at short (fifteen - to thirty- minute ) intervals. B. The Court ’ s assessment 1. General principles 110. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim ’ s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). 111. According to the Court ’ s case-law, ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 202, ECHR 2012 ). 112. Conditions of detention may sometimes amount to inhuman or degrading treatment (see Peers v. Greece, no. 28524/95, § 75, ECHR 2001 ‑ III ). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). 113. The authorities are under an obligation to protect the health of persons deprived of their liberty. A lack of appropriate medical care may amount to treatment contrary to Article 3 (see Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001 ‑ III). Moreover, the Court has found problematic from the point of view of Article 3 the placement in solitary confinement of a detainee who is at an advanced stage of a hunger strike and may present an increased risk of losing consciousness, unless appropriate arrangements are made in order to supervise his state of health (see Palushi, cited above, § 72 ). 114. The Court has previously held that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment (see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999 ‑ V). In assessing whether such a measure may fall within the ambit of Article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure and its duration, the objective pursued and the effects of the measure on the person concerned (see Van der Ven v. the Netherlands, no. 50901/99, § 51, ECHR 2003 ‑ II; and Lorsé and Others v. the Netherlands, no. 52750/99, § 63, 4 February 2003). Furthermore the Court has emphasised that the positive obligation to protect persons in custody must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see, in the context of Article 3, Pantea v. Romania, n 33343/96, § 189, 3 June 2003; Premininy v. Russia, no. 44973/04, § 83, 10 February 2011; Tautkus v. Lithuania, no. 29474/09, § 52, 27 November 2012; in the context of Article 2 see Ketreb v. France, no. 38447/09, §§ 71-72, 19 July 2012, with further references ). 2. Application to the present case 115. In relation to the applicant ’ s complaint that the medical treatment of Y.C. during his hunger strike was not in accordance with the relevant laws and ordinances, the Court notes in general that with regard to the steps to be taken in the event of a hunger strike, clear instructions were issued by the Ministry of the Interior to the authorities, which had been prepared after consultations with its medical service and various NGOs (see paragraphs 63 - 66 above). The Court sees no indication that these instructions were in themselves insufficient or unclear, or that overall in the instant case they were not sufficiently followed. When Y.C. announced his hunger strike to the authorities, he was handed an information sheet in his mother tongue detailing the risks associated with a hunger strike, and he was examined by a medical doctor without delay. A hunger strike form was filled out and certain medical measures were taken on a daily basis by the police doctor on duty (see paragraphs 12 - 14 above). There is no indication that any legal provision, internal order, recommendation or international material concerning medical care for detainees on hunger strike was disregarded. Furthermore there were no indications that Y.C. suffered from sickle cell disease and he was not aware of it himself. At the time, even hospitals did not conduct standardised tests for that blood anomaly (see paragraph 52 above). The Court therefore cannot blame the authorities for not having given appropriate instructions at the outset to conduct such a test for the applicant. 116. When it comes to the question of whether the authorities should have noticed Y.C. ’ s worsening state of health at an earlier stage and taken appropriate measures, the Court reiterates that on 28 September 2005, the day of Y.C. ’ s initial hunger- strike examination, the police doctor described Y.C. ’ s appearance as “vital, overall”, “his musculature in a good, well ‑ trained state” with “pronounced muscles of the upper arm, six-pack like someone who practices athletic sports” (see paragraph 12 above). During the administrative proceedings, all except one of the witnesses stated that even shortly before his death, Y.C. had still appeared to be athletic and strong (see paragraph 40 above). The police doctor Dr F.G. stated that on 3 October 2005 Y.C. had walked into the examination room without support, which is why he had not assumed that Y.C. was in a life ‑ threatening situation. However, because on 4 October 2005 it was noticed that Y.C. had a dry tongue and barky lips and had arrived at the examination room while being supported by two detainees (see paragraph 16 ), Dr F.G. ordered the examination that day to be carried out at the hospital (see paragraph 41 above). During the examination at Linz General Hospital on the day of his death, he used a great deal of physical force, resisting the examination and kicking out at the hospital staff (see paragraphs 17 and 19 above). The treating doctor, an experienced emergency doctor, observed Y.C. ’ s dry lips, but after a further examination he could not find other symptoms of dehydration or other abnormalities (see paragraph 19 above). Nevertheless, a blood test was ordered to address that question. 117. The Court therefore concludes that on the morning of 4 October 2005 Y.C. ’ s external appearance was that of a physically fit man who was aggressive because he did not want to be examined. Even though the applicant ’ s behaviour might, with hindsight, be considered as a sign of already advanced dehydration and a consequent disintegration of his blood cells owing to sickle cell disease (see paragraph 34 above), that was not foreseeable at the time of the events. That impression is confirmed by both experts ’ description of Y.C. ’ s physical condition after his death. Dr H., who drew up the autopsy report, found no signs of classic dehydration in Y.C.´s body and, moreover, no malnutrition and no long-term abstinence from food (see paragraph 31 ). 118. As regards the calculation and registration of Y.C. ’ s weight, the Court observes that, according to the information available to it, prior to the hunger strike, on 12 September 2005, it was recorded as 76.5 kg which went down to 70 kg on 26 September. When he informed the authorities of his hunger strike on 28 September 2005, Y.C. ’ s weight was recorded as 67 kg, which was taken as the basis for calculation of his critical weight at 54 kg. When he died, Y.C. weighed 59 kg (see paragraphs 10 - 13 and 18 above). Based on the extensive investigation conducted at domestic level, there were no indications that Y.C. ’ s weight had ever been wrongly calculated and that he had possibly reached his critical weight before he died on 4 October 2005. Dr L., appointed by the IAP to deal extensively with that issue, did not support the assumptions of Dr W.G., whom the applicant had engaged and who contended that Y.C. had started his hunger strike earlier than 27 September 2005 and had already fallen below his critical weight before his death (see paragraph 44 above). Dr L. found it likely that Y.C. had always been weighed properly and stated that the relatively high weight of 76. 5 kg recorded on 12 September must have been an incorrect recording (see paragraph 55 above). The Court considers this possible mistake particularly regrettable because the correct recording of a detainee ’ s weight may be critical for determining when and what medical care is made available during detention and the course of a hunger strike (see paragraphs 64 - 65 above). Given the protocol in place in Austria for the treatment of detainees on hunger strike, it falls to the competent authorities to follow the instructions it contains with due diligence. However, on the basis of the experts ’ reports, which were examined in detail by the domestic investigative authorities, the Court cannot discern any causal link between the possible mistake in recording Y.C. ’ s weight on 12 September, the calculation of his critical weight on 28 September and his death on 4 October 2005. As has been convincingly established in medical terms, the cause of Y.C. ’ s death was dehydration whose effects were rapidly and unforeseeably exacerbated by the fact that he was a carrier of sickle cell disease (see paragraphs 32, 33 and 54 ). Neither Y.C. ’ s appearance nor his behaviour at the hospital gave rise to an assumption that he could be suffering from acute, life-threatening dehydration. The fact that Y.C. was a carrier of sickle cell disease was only discovered through a blood test, of which the result only became available after his death. In addition, although Y.C. was returned to the detention centre before the result of the blood test was available, this was following a medical assessment of his condition. 119. In the light of those facts and the witness and expert statements, the Court sees no reason to question the domestic courts ’ conclusion that the authorities could not have been aware that Y.C. was in a life-threatening situation requiring urgent medical attention. It was not foreseeable that, if his health declined, the rate of decline would be precipitous due to the undetected sickle cell disease. 120. Turning to the applicant ’ s complaint that the measure of placing Y.C. alone in a security cell without any legal basis after he had returned from Linz General Hospital on 4 October 2005 had constituted inhuman or degrading treatment, the Court notes at the outset that the decision was based on section 5 of the Detention Ordinance and was due to his aggressive behaviour in hospital (see paragraphs 42 and 108 above). 121. The present case must furthermore be distinguished from Palushi (cited above, § 74). In the latter case the Court found a violation of Article 3 of the Convention because the applicant had been placed in solitary confinement without access to appropriate medical care, had had no access to a doctor for several weeks (ibid., § 7 2 ) and was therefore at the time of the critical events already at an advanced stage of a hunger strike with an increased risk of losing consciousness. In the present case, the applicant ’ s brother had access to medical care throughout his detention, care which was even provided on a daily basis after he had announced his hunger strike, only six days before his death. This constant medical care was based on a developed domestic practice concerning the treatment of hunger strikers and was in compliance with international standards (see paragraphs 63 – 66 and 115 above). Moreover, the applicant ’ s brother was examined in hospital a few hours before his death (see paragraph 17 above). 122. In that context, the Court observes that while it is true that Y.C. could have requested a water bottle at any time, it would clearly have been advisable given the situation to provide him with direct access to water in the cell and to advise him to take in fluids. However, as it was not possible either for the hospital or the authorities at the detention centre to detect the critical state of the applicant ’ s health and the fact that he might go into rapid decline due to the sickle cell disease, the failure to take such measures cannot, under the circumstances, be considered as inhuman or degrading. 123. For the above reasons, the Court concludes that there has been no violation of Article 3 of the Convention. | The Court held that there had been no violation of Article 2 (right to life) of the Convention. There was, in particular, no indication of shortcomings in the public prosecutor’s investigation, which had been closed as no sufficient evidence had been found to indicate misconduct on the part of the persons in charge. The public prosecutor had relied on the comprehensive autopsy report and expert medical report, which had clearly stated that death through the use of force could be excluded, and that the applicant’s brother had died of dehydration, combined with the fact that he had been a carrier of sickle cell trait. The Court also held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. As regards, in particular, the steps to be taken in the event of a hunger strike, it noted that clear instructions had been issued by the Ministry of the Interior to the authorities, which had been prepared after consultations with its medical service and various NGOs. There was no indication that those instructions were in themselves insufficient or unclear, or that overall in the instant case they were not sufficiently followed. Furthermore there had been no indications that the applicant’s brother suffered from sickle cell disease and he had not been aware of it himself. At the time, even hospitals did not conduct standardised tests for that blood anomaly. The authorities could not be blamed for not having given appropriate instructions at the outset to conduct such a test for the applicant’s brother. |
723 | Access to court | II. RELEVANT DOMESTIC LAW A. The Constitution 29. The relevant provisions of the Constitution read as follows: Article 161 § 1 “The Constitutional Court shall have jurisdiction for the whole of Spanish territory and is competent to hear: (a) appeals against alleged unconstitutionality of laws and regulations having the force of law ...; (b) individual appeals for protection [ recurso de amparo ] against violation of the rights and liberties referred to in Article 53 § 2 of the Constitution, in the circumstances and manner laid down by law; (c) disputes between the State and an Autonomous Community or between different Autonomous Communities over the scope of their powers. ... Article 163 “If in the course of proceedings a judicial body considers that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, it shall refer the issue to the Constitutional Court in the circumstances and manner and with the effects – which shall under no circumstances include suspensive effect – to be laid down by law.” Article 164 “1. Judgments of the Constitutional Court shall be published in the State's Official Gazette together with any dissenting opinions. They shall be final with effect from the day after their publication and no appeal shall lie against them. Judgments declaring a law or a rule having the force of law unconstitutional and all judgments that are not merely in personam shall be binding on everyone. 2. Unless stated otherwise in the judgment, parts of the law not declared unconstitutional shall remain in force.” B. Institutional Law no. 2/1979 on the Constitutional Court – Chapter III, “On questions of constitutionality referred by judges and courts” 30. The relevant provisions of this law read as follows: Article 35 “1. When judges or courts, of their own motion or at the request of a party, consider that a provision which has the status of law and is applicable in the proceedings and upon whose validity its decision depends might be contrary to the Constitution, they shall refer the matter to the Constitutional Court, in accordance with the provisions of the present Law. 2. The judge or court concerned shall make the referral only when the case is ready for trial and within the time allowed for giving judgment. They must specify which law or provision having the status of law is alleged to be unconstitutional and which Article of the Constitution is considered to have been breached. They must also state the precise reasons why the outcome of the proceedings depends on the validity of the contested provision. Before taking a final decision on whether to refer an issue to the Constitutional Court, the judge or court shall first hear any representations the parties and a representative of State Counsel's Office may wish to make regarding the relevance of the issue within a ten-day non-extendable time-limit that shall apply to each of them. The judge shall give his or her decision within three days thereafter, no further action being required. No appeal shall lie against that decision. However, the constitutionality issue may be raised again in subsequent proceedings until such time as the judgment has become final.” Article 36 “A judge or court shall refer constitutionality issues to the Constitutional Court by sending a certified copy of the main case file and any representations made under the preceding Article.” Article 37 “1. On receipt of the case file the Constitutional Court shall follow the procedure laid down in paragraph 2 of this Article. However, it may in a reasoned decision declare the question referred inadmissible after hearing representations by the Attorney General alone if the procedural requirements have not been complied with or the question referred is manifestly ill-founded. 2. The Constitutional Court shall inform the Chamber of Deputies and the Senate (through their respective Speakers), the Attorney General and the Government (through the Ministry of Justice) of the question referred. If it concerns a law or a provision having the status of law adopted by an Autonomous Community, the legislative and executive authorities of that Community shall also be informed. Each of these bodies shall be entitled to appear before the Constitutional Court and to make representations on the constitutionality issue within a non-extendable fifteen-day time-limit that shall apply to each of them. Once that period has expired, the Constitutional Court shall give judgment within fifteen days, unless it gives a reasoned decision explaining why it considers a longer period – not exceeding thirty days – to be necessary.” C. Autonomous Community Law no. 9/1996 of 17 June 1996 on natural sites in Navarre (“the Autonomous Community law of 1996”) 31. The explanatory memorandum to the Autonomous Community law of 1996 states that the text has two objectives: first of all, it establishes a legal system specific to Navarre in order to safeguard, preserve and improve those parts of its territory which contain natural assets worthy of protection in accordance with Spanish legislation and European Union directives on environmental protection; secondly, the law is intended to harmonise the legislation on natural sites enacted by the Autonomous Community of Navarre. In particular, the law lists the nature reserves and natural sites in Navarre which are protected by law and establishes their boundaries. It also sets out, for each type of protected site, the types of activity and use which are authorised or prohibited. Section 18 reads as follows: “Peripheral protection areas 1. Through an autonomous law, the parliament of Navarre may identify the boundaries of ... peripheral protection zones around the Strict Nature Reserves and Nature Reserves, which may be discontinuous and shall be intended to avoid external impact on the environment or landscape. ... 3. The regulations governing activities and land use within the peripheral protection zones of the Strict Nature Reserves, Nature Reserves and Nature Parks shall be as follows: (A) Non-construction activities (A.1.) The following may be authorised: ... – Activities related to the creation of infrastructure which is in the public or general interest. ... (B.) Construction activities (B.1.) The following may be authorised: ... – Infrastructure declared to be in the public or general interest. ...” THE LAW 32. Relying on Article 6 § 1 of the Convention, the applicants alleged that, in the judicial proceedings brought by them to halt construction of the Itoiz dam, they had not had a fair hearing in that they had been prevented from taking part in the proceedings concerning the preliminary ruling on the constitutionality of the Autonomous Community law of 1996, while Counsel for the State and State Counsel's Office had been able to submit their observations to the Constitutional Court. They also complained that the enactment of the Autonomous Community law of 1996 had been intended to prevent the execution of a Supreme Court judgment that had become final. The law's enactment had infringed their right to a fair hearing as guaranteed by Article 6 § 1 of the Convention and, with regard to the first five applicants, their right to respect for their private and family lives and their homes, protected by Article 8 of the Convention, as well as their right to the peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1. I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS A. As to the applicants'lack of “victim” status and the non-exhaustion of domestic remedies 33. The Government pointed out that the first five applicants, who had applied to the Court, had not participated in the domestic proceedings under review in the present application. In addition, at no point during the contested proceedings were the domestic courts appraised of their existence or that of their properties. In that connection, the Government emphasised that the applicants'explanation of why they had not taken part in the domestic proceedings – namely that this would have entailed long and costly proceedings - was not serious. As to the applicants'properties, they noted that expropriation proceedings in respect of those properties were ongoing and that the applicants were in a position to defend their “civil rights and obligations” in them without this raising any problem. 34. The applicants emphasised the clear consequences of the contested proceedings on their civil rights. Firstly, they pointed out that they all lived in Itoiz, where their immovable property was situated. Construction of the dam would result in flooding of this area and, consequently, of their homes and other assets. In addition, they submitted that, as members of the Coordinadora de Itoiz association since its formation in 1988, they had taken part in the proceedings with that association as their intermediary. They stressed the indisputable direct link between them and the damage that would be sustained from the dam's construction, and submitted that the remedy used was the only one which, if successful, would have allowed for the definitive protection of their civil rights and interests. In this connection, they stressed that they would have been acting unreasonably had each of them brought a separate individual appeal against the proposed dam and thus entered long and costly proceedings with the same final outcome as that achieved by the association. Moreover, it was clear that, from the outset, they had entrusted the association with the defence of their civil rights and interests. Indeed, this was the logical result of one of the association's stated aims, namely the “defence of an alternative way of life on the site”. In conclusion, they contended that they could claim to be victims of a violation within the meaning of Article 34 of the Convention. 35. The Court points out that, in order to rely on Article 34 of the Convention, two conditions must be met: an applicant must fall into one of the categories of petitioners mentioned in Article 34, and he or she must be able to make out a case that he or she is the victim of a violation of the Convention. According to the Court's established case–law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act. In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm which they consider they have sustained on account of the alleged violation (see, among other authorities, Tauira and Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83 -B, p. 112; Association des amis de Saint-Raphaël et de Fréjus and Others v. France, no. 38192/97, Commission decision of 1 July 1998, DR 94 -B, p. 124; Comité des médecins à diplômes étrangers v. France and Others v. France (dec.), nos. 39527/98 and 39531/98, 30 March 1999). 1. As to whether the applicant association was a “victim” 36. In so far as the applicant association alleges a violation of Article 6 § 1 of the Convention, the Court notes that the association was a party to the proceedings brought by it before the domestic courts to defend its members'interests. Accordingly, it considers that the applicant association may be considered a victim, within the meaning of Article 34, of the alleged shortcomings under the provision relied upon (see Association for the Protection of Car Purchasers and Others v. Romania (dec.), no. 34746/97, 10 July 2001). 2. As to the “victim” status of the first five applicants and the exhaustion of domestic remedies 37. The Court notes at the outset that the question of victim status, for the purposes of Article 34 of the Convention, is, in the instant case, closely linked to the requirement of exhaustion of domestic remedies contained in Article 35 § 1. As regards the last point, it reiterates that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism (see, among other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34). The Court has further recognised that the rule of 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 (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned, but also of the context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see, mutatis mutandis, the following judgments: Akdivar and Others v. Turkey, 16 September 1996, Reports 1996-IV, p. 1211, § 69; Aksoy v. Turkey, 18 December 1996, Reports 1996-VI, p. 2276, §§ 53-54; and Baumann v. France, no. 33592/96, § 40, 22 May 2001 ). 38. In the instant case, the Court observes that the applicant association was established for the specific purpose of defending its members'interests against the consequences of the dam's construction on their environment and homes. In addition, the proceedings before the domestic courts, through the intermediary of the association, concerned not only a dispute over the lawfulness of the ministerial decree authorising the relevant work in the light of the applicable legislation on the construction of dams, but also emphasised the project's impact on the property rights and lifestyles of the association's members due to the change in their place of residence. In its appeals, the applicant association, acting on behalf of its members, repeatedly emphasised that the dam's construction would lead to the flooding of several small villages, including the hamlet of Itoiz, where the applicants had their family homes. From this perspective, it is undeniable that the public-works project, with all that it entailed (expropriation of property, population displacement) had direct and far-reaching consequences both on the applicants'property rights and on their families'lifestyles (see, mutatis mutandis, Association des amis de Saint-Raphaël et de Fréjus and Others, cited above, p. 131). Admittedly, the applicants were not parties to the impugned proceedings in their own name, but through the intermediary of the association which they had set up with a view to defending their interests. However, like the other provisions of the Convention, the term “victim” in Article 34 must also be interpreted in an evolutive manner in the light of conditions in contemporary society. And indeed, in modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members'interests is recognised by the legislation of most European countries. That is precisely the situation that obtained in the present case. The Court cannot disregard that fact when interpreting the concept of “victim”. Any other, excessively formalistic, interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory. 39. Having regard to the particular circumstances of the case, and especially the fact that the applicant association was set up for the specific purpose of defending its members'interests before the courts and that those members were directly concerned by the dam project, the Court considers that the first five applicants can claim to be victims, within the meaning of Article 34, of the alleged violations of the Convention, and that they have exhausted domestic remedies with regard to the complaints under Article 6 § 1 of the Convention. B. Applicability of Article 6 § 1 of the Convention 1. Arguments before the Court 40. According to the Government, none of the proceedings brought by the applicant association, whether before the Audiencia Nacional, the Supreme Court or the Constitutional Court, concerned “civil rights and obligations” within the meaning of Article 6 § 1. The action brought by the applicant association was intended to uphold the law and defend collective interests such as environmental protection. At no time did the dispute centre on the defence of private economic rights. This was perfectly clear from the memorials filed by the association in support of its various appeals, and was clearly expressed in the various decisions handed down by the domestic courts. Ultimately, the problem of non-enforcement of the Supreme Court's judgment of 14 July 1997 did not affect any private right. 41. Furthermore, the Government considered that the instant case could not be compared to Ruiz-Mateos v. Spain (judgment of 23 June 1993, Series A no. 262). While the Rumasa expropriation law had been a specific law which primarily affected the Ruiz-Mateos family, the Autonomous Community law of 1996 was a general purpose law which affected many people, that is,. not only the applicant association and its members, but the tens of thousands of people who would benefit from construction of the Itoiz dam. Moreover, the general scope of the law had been expressly recognised by both the Audiencia Nacional and the Constitutional Court. While the constitutional issue in Ruiz-Mateos undoubtedly concerned the applicants'economic rights, the issue in the instant case did not concern civil rights and obligations, but the lawfulness of the proposed dam. It followed that Article 6 § 1 was not applicable. 42. The applicants rejected the Government's argument. It was undeniable that the applicant association had acted to defend its members'individual and private rights and interests; at the same time, it was clear that the Supreme Court's judgment of 14 July 1997 concerned the protection and definitive safeguarding of their personal rights and interests as members of the association. In their opinion, the civil rights of the association's members had been at stake from the outset of the proceedings, in that their possessions and lifestyles were likely to be decisively affected by the proposed dam. Thus, in the memorial filed by the association against the ministerial decree of 2 November 1990, it was clearly stated that construction of the dam would entail the expropriation of a whole series of farming and other properties as well as displacement of the population concerned. Those consequences, in terms of the assets and individuals affected by the dam's construction, were pointed out on numerous occasions by the applicant association in the course of the various proceedings. In conclusion, contrary to the Government's submissions, “civil” rights within the meaning of Article 6 § 1 had unquestionably been in issue before the domestic courts. 2. The Court's assessment 43. The Court reiterates that for Article 6 § 1 to be applicable in its “civil” limb there must be a dispute ( “ contestation ” ) over a “right” that can 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. The outcome of the proceedings must be directly decisive for the right in question: mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see, for example, the following judgments: Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, Series A no. 43, pp. 21-22, § 47; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, pp. 45-46, § 56; Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44; Balmer-Schafroth v. Switzerland, 26 August 1997, Reports 1997-IV, p. 1357, § 32; and Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV; see also Syndicat des médecins exerçant en établissement hospitalier privé d'Alsace and Others v. France (dec.), no. 44051/98, 31 August 2000). 44. In the instant case, while it is common ground that a dispute existed over a right recognised under domestic law, there was disagreement as to its subject matter. According to the Government, at no point did the dispute focus on the association's economic or private rights, but instead on upholding the law and collective rights, so that no “civil” right was at stake. The applicant association, on the other hand, claimed to have acted to defend the individual and private rights and interests of its members. 45. The Court notes that, in addition to defence of the public interest, the proceedings before the Audiencia Nacional and subsequently before the Supreme Court were intended to defend certain specific interests of the association's members, namely their lifestyle and properties in the valley that was due to be flooded. As to the proceedings before the Constitutional Court concerning the request for a preliminary ruling on constitutionality, the applicants emphasise that this was the only method of challenging the Autonomous Community law of 1996, in that only a finding of unconstitutionality could have had the result of protecting both the environment and their homes and other immovable property. 46. Admittedly, the aspect of the dispute relating to defence of the public interest did not concern a civil right which the first five applicants could have claimed on their own behalf. However, that was not true with regard to the second aspect, namely the repercussions of the dam's construction on their lifestyles and properties. In its appeals, the applicant association complained of a direct and specific threat hanging over its members'personal assets and lifestyles. Without a doubt, this aspect of the appeals had an “economic” and civil dimension, and was based on an alleged violation of rights which were also economic (see Procola v. Luxembourg, judgment of 28 September 1995, Series A no. 326, pp. 14-15, § 38). 47. While the proceedings before the Constitutional Court ostensibly bore the hallmark of public-law proceedings, they were nonetheless decisive for the final outcome of the proceedings brought by the applicants in the ordinary courts to have the dam project set aside. In the instant case, the administrative and constitutional proceedings even appeared so interrelated that to have dealt with them separately would have been artificial and would have considerably weakened the protection afforded in respect of the applicants'rights. By raising the question of the Autonomous Community law's constitutionality, the applicants used the single, albeit indirect, means available to them for complaining of interference with their property and lifestyles (see Ruiz-Mateos, cited above, p. 24, § 59). The Court therefore finds that the proceedings as a whole may be considered to concern the civil rights of the first five applicants as members of the association. 48. Accordingly, Article 6 § 1 of the Convention applied to the contested proceedings. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49. According to the applicants, the proceedings before the Constitutional Court to examine the question of constitutionality referred by the Audiencia Nacional did not respect the principle of equality of arms, an inherent part of the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention. 50. The applicants argued in this connection that they had been prevented from taking part in the proceedings concerning the preliminary ruling on constitutionality, while Counsel for the State and State Counsel's Office had been able to submit their observations to the Constitutional Court. As a result, they had been unable to assert their interests before that court with regard to the balance to be struck between the conflicting interests. 51. The applicants also submitted that Autonomous Community Law no. 9/1996 had been enacted in order to prevent execution of the Supreme Court's judgment, which had become final and enforceable. In their opinion, this amounted to interference by the legislature in the outcome of a dispute, contrary to Article 6 § 1, the relevant part of which states: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ... ” 52. The Court will examine in turn the complaint based on the alleged violation of the principle of equality of arms, then that concerning the legislature's alleged interference in the outcome of the dispute. A. Alleged violation of the principle of equality of arms 1. The parties'submissions (a) The applicants 53. The applicants submitted, firstly, that a number of the provisions of the Autonomous Community law of 1996 had been drafted for the sole and exclusive purpose of circumventing the grounds for cancellation of the dam project and, consequently, of rendering unenforceable the Supreme Court judgment which, in this respect, had become final. It was not a general law but, on the contrary, a new regulation. In their opinion, the only method of challenging the Autonomous Community law of 1996 was to apply to the Constitutional Court for a preliminary ruling. A finding of unconstitutionality would have had the effect of protecting both the environment and their civil right to peaceful enjoyment of their homes, dwelling houses and other immovable property. They had been unable to defend their point of view and counter the arguments put forward by the opposing parties before either the Audiencia Nacional or the Constitutional Court, despite the fact that it was the applicant association itself which had requested that a preliminary ruling on constitutionality be sought. Further, the Constitutional Court's judgment took no account of any of their arguments. In this regard, the applicants stressed that, had they had an opportunity to take part in the proceedings before the Constitutional Court, they would have been able to repeat and develop their arguments and the grounds that they considered relevant to their case. The applicants submitted that, taken together, this had resulted in a violation of Article 6 § 1 of the Convention. (b) The Government 54. The Government observed that, while in Ruiz-Mateos the case centred on an expropriation law impinging primarily on the Ruiz-Mateos family, in the instant case the Autonomous Community law of 1996 was of general application, affecting not only the applicant association and its members, but also many other people who would benefit from construction of the Itoiz dam, as expressly stated by the Audiencia Nacional and the Constitutional Court. 2. The Court's assessment 55. The Court accepts the Government's submission that the Autonomous Community law of 1996 differed from the Rumasa expropriation law in terms of the number of people affected. Nevertheless, the applicants were among the restricted circle of persons most directly affected by the Autonomous Community law of 1996's endorsement of the dam project, which they had challenged in the ordinary courts and with regard to which judgments in their favour had been given. This particular interest with regard to the Autonomous Community law of 1996 was confirmed by the Constitutional Court's decision on the admissibility of their request for a preliminary ruling on the constitutionality of certain provisions of that law. 56. The Court reiterates that the principle of equality of arms is part of the wider concept of a fair hearing within the meaning of Article 6 § 1 of the Convention. It requires a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a disadvantage vis-à-vis their opponent or opponents (see, inter alia, the following judgments: Ankerl v. Switzerlan, 23 October 1996, Reports 1996-V, pp. 1567-68, § 38; Nideröst-Huber v. Switzerland, 18 February 1997, Reports 1997-I, pp. 107-08, § 23; and Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI). 57. The Court has already considered, in Ruiz-Mateos, the question of respect for certain guarantees arising from the concept of a fair hearing in the context of examination of a question of constitutionality by the Spanish Constitutional Court. In that case, the Court found that there had been a violation of Article 6 § 1 with regard to the fairness of the proceedings before the Constitutional Court. The decisive factor in the Court's finding of a violation lay in the fact that Counsel for the State had had advance knowledge of the Ruiz-Mateos family's arguments and was consequently able to comment on them in the last instance before the Constitutional Court, whilst the applicants had not had a similar opportunity to reply to his remarks ( loc. cit., p. 26, §§ 65 and 67). 58. In the instant case, the situation is somewhat different. In the first place, while the expropriation law in issue in Ruiz-Mateos could be considered as ad personam legislation, in the present case the Autonomous Community law of 1996 was of general application and did not concern the applicants alone. 59. In addition, having declared the question of constitutionality admissible on 21 July 1998, the Constitutional Court gave notice of the problems raised in the application for a preliminary ruling to the Chamber of Deputies, the Senate, the government and parliament of the Autonomous Community of Navarre, and the State government, so that those bodies could file their observations within the same fifteen-day period (Article 37 § 2 of the Institutional Law on the Constitutional Court). The Constitutional Court received Counsel for the State's observations on 4 September 1998. The government and parliament of the Autonomous Community of Navarre submitted their observations on 11 and 15 September 1998 respectively. The Attorney General submitted his on 29 September 1998. On 1 March 2000 the registrar of the First Section of the Audiencia Nacional forwarded to the Constitutional Court the documents, dated 29 September 1997, 10 June 1998 and 28 February 2000, submitted by the Coordinadora de Itoiz association during the proceedings before it; these were formally joined to the case file at the Constitutional Court. 60. The Court notes that proceedings on the constitutionality of a law do not provide for either an exchange of memorials or for a public hearing. Thus, even supposing that the applicants had formally been parties to the procedure, they would not have received the memorials submitted by the other participants. Admittedly, it cannot be ruled out that some form of consultation took place between those State authorities which submitted their observations to the Constitutional Court. However, a major difference between the instant case and Ruiz-Mateos lies in the fact that all the memorials filed by the applicants through the applicant association in support of their arguments as to the unconstitutionality of the Autonomous Community law of 1996 (memorials dating from September 1997 to January 2000) were forwarded by the Audiencia Nacional to the Constitutional Court, which formally joined them to the case file before ruling on the question of constitutionality. Another distinguishing feature between the two cases is that, in the earlier case, the Ruiz-Mateos family asked the Constitutional Court for leave to take part in the proceedings, a request that was dismissed by that court (see Ruiz- Mateos, p. 13, §§ 17 - 18). In the instant case there is nothing in the case file to suggest that the applicants applied to the Constitutional Court at any time for leave to take part in the proceedings, although they could have relied on the Court's previous case-law in Ruiz-Mateos to support such an application. Finally, the Court observes that the Constitutional Court replied at length in its judgment to the arguments submitted by the applicants throughout the entire proceedings. 61. In conclusion, having regard to the special features of the procedure for a preliminary ruling on constitutionality, there has not been an infringement of the very essence of the principle of equality of arms as guaranteed by Article 6 § 1 of the Convention. B. Alleged interference by the legislature in the outcome of the dispute 62. According to the applicants, the aim of the enactment of the Autonomous Community law of 1996 was to prevent the execution of the Supreme Court's judgment, which had become final and enforceable. In their opinion, this amounted to an interference by the legislature in the outcome of the dispute, contrary to the principle of a fair hearing guaranteed by Article 6 § 1 of the Convention. 63. According to the Government, the impugned law was adopted in the public interest and by no means for the purpose of influencing the judicial determination of the case. 64. The Court has already had occasion to rule on allegations of intervention by the State, through the legislature, in order to influence the outcome of a case to which it was party in which a finding had already been made against it in the examination on the merits. This was the situation that obtained in Stran Greek Refineries and Stratis Andreadis ( cited above ), Papageorgiou ( cited above ), National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society (“ Building Societies ”) v. the United Kingdom (judgment of 23 October 1997, Reports 1997-VII), and Zielinski and Pradal and Gonzalez and Others v. France ([GC], nos. 24846/94 and 34165/96 to 34173/96, ECHR 1999-VII). On this subject, the Court reaffirms that, while in principle the legislature is not precluded from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute save on compelling grounds of the general interest (see the following judgments cited above: Stran Greek Refineries and Stratis Andreadis, p. 82, § 49; Papageorgiou, p. 2288, § 37; Building Societies, p. 2363, § 112; and Zielinski and Pradal and Gonzalez and Others, § 57 ). 65. In Stran Greek Refineries and Stratis Andreadis, Papageorgiou and Zielinski and Pradal and Gonzalez and Others, the Court found that there had been a violation of Article 6 § 1 of the Convention. 66. In Stran Greek Refineries and Stratis Andreadis, two essential features led the Court to conclude that there had been an infringement of the right to a fair hearing: firstly, the Greek legislature's intervention in the case had taken place at a time when judicial proceedings in which the State was a party were pending; secondly, the fact that the Court of Cassation had decided to adjourn the hearing on the ground that a draft law concerning the case was before Parliament ( loc. cit., pp. 81-82, § 47). 67. In Papageorgiou, the Court's criticism of the interference was prompted by the following three considerations: firstly, the disputed legislative provision, namely section 26 of Law no. 2020/1992, provided that any claims for repayment of contributions previously paid by the applicants to the Manpower Employment Organisation were extinguished and that any proceedings concerning such claims pending in any court were to be struck out; secondly, section 26 was contained in a statute whose title bore no relation to that provision, a practice prohibited by Article 74 § 5 of the Greek Constitution; finally, the disputed provision had been enacted after the appeal had been lodged by the Public Electricity Company, which employed the applicants, against the judgment of the Athens Court of First Instance, sitting as an appellate court, and prior to the hearing before the Court of Cassation. In those circumstances, the Court concluded that the enactment of section 26 at such a crucial point in the proceedings before the Court of Cassation resolved the substantive issues for practical purposes and made carrying on with the litigation pointless (see Papageorgiou, p. 2289, § 38). 68. In Zielinski and Pradal and Gonzalez and Others, the Court held that the passing of legislation with retrospective effect had had the effect of endorsing the State's position in the proceedings that had been brought against it and which were still pending in the ordinary courts ( loc. cit., § 58). 69. However, there are significant differences between the present case and those cases. 70. A common feature of the cases previously examined by the Court lies in the fact that the State's intervention through legislative acts was intended either to influence the outcome of pending judicial proceedings, to prevent proceedings being opened, or to render void final and enforceable decisions which recognised personal rights to receive payment. In the instant case, the dispute between the applicants and the Autonomous Community of Navarre concerned regional development plans, a sphere in which an amendment or change to legislation following a judicial decision is generally accepted and practised. Whilst creditors may, in general, avail themselves of firm and intangible rights, this is not the case with regard to issues of urban or regional planning, a sphere concerning rights of a different nature which are essentially evolutive. Urban and regional planning policies are, par excellence, spheres in which the State intervenes, particularly through control of property in the general or public interest. In such circumstances, where the community's general interest is pre-eminent, the Court takes the view that the State's margin of appreciation is greater than when exclusively civil rights are at stake (see, mutatis mutandis, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46; Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no. 169, p. 29, § 55; and Chapman v. the United Kingdom [GC], no. 27238/95, § 104, ECHR 2001-I ). 71. Nevertheless, the effective protection of a party to proceedings and the restoration of legality presuppose an obligation on the administrative authorities'part to comply with the judgments of the domestic courts. The Court points out in this connection that the administrative authorities form one element of a State subject to the rule of law and their interests accordingly coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees enjoyed under Article 6 by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Antonetto v. Italy, no. 15918/89, § 28, 20 July 2000). In the instant case, the Court would emphasise that the Audiencia Nacional's decisions in favour of the applicants'arguments did not remain inoperative; on the contrary, they were always complied with by the administrative authorities. This was so with regard to the suspension of construction work ordered by the Audiencia Nacional in its decisions of 24 January and 6 March 1996 (see paragraphs 13- 14 above). At every point, the administrative authorities complied with the judicial decisions given against them. 72. The Court notes that the situation complained of by the applicants cannot be considered similar to that in Stran Greek Refineries and Stratis Andreadis, where the State had intervened in a decisive manner to sway in its favour the outcome of proceedings to which it was a party. In the instant case, the enactment of the Autonomous Community law of 1996 was certainly not intended to remove jurisdiction from those Spanish courts called upon to examine the lawfulness of the dam project. Admittedly, the explanatory memorandum referred specifically to the peripheral protection zones around the nature reserves affected by the dam and to the law's objective. Nevertheless, the disputed law concerned all of Navarre's protected nature reserves and natural sites, and not only the area affected by construction of the dam. Its general application is not open to doubt. In addition, the parliament of Navarre did not enact legislation with retrospective effect, as was proved by the fact that, notwithstanding the enactment of the Autonomous Community law on 17 June 1996, the Supreme Court, a few weeks after adoption of the law, delivered a judgment which partly but definitively cancelled the original dam project. Whilst it is undeniable that the parliament of Navarre's enactment of the law in question was ultimately unfavourable for the arguments put forward by the applicants, it cannot be said that the text was approved for the purpose of circumventing the principle of the rule of law. In any event, once the Autonomous Community law had been enacted, the applicants'request for a preliminary ruling by the Constitutional Court on the constitutionality of some of its provisions was granted, and that court ruled on the merits of their complaints. Before the Constitutional Court, the applicants'arguments were examined on the same footing as those submitted by the government and the parliament of Navarre. In conclusion, the dispute between the applicants and the State was examined by the Spanish courts in compliance with the principle of a fair trial as guaranteed by Article 6 § 1. 73. For the above reasons, the Court concludes that the interference by the legislature in the outcome of the dispute, as alleged by the applicants, did not make the proceedings unfair. There has accordingly been no breach of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 74. The applicants alleged that the enactment of the Autonomous Community law of 1996 represented a violation of their right to respect for private and family life and their homes under Article 8 of the Convention, as well as of the right to the peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1. 75. The Court notes that the applicants'complaints are substantially the same as those submitted under Article 6 § 1 and examined above. Accordingly, it considers that it is not necessary to examine them separately under the other provisions relied on. | Having regard to the particular circumstances of the case, and especially the fact that the applicant association had been set up for the specific purpose of defending its members’ interests before the courts and that those members were directly concerned by the dam project, the Court considered that the first five applicants could claim to be victims, within the meaning of Article 34 (right to individual application) of the Convention, of the alleged violations, and that they had exhausted domestic remedies with regard to the complaints under Article 6 § 1 of the Convention. In the present case, the Court held that there had been no violation of Article 6 § 1 of the Convention, as to both the alleged breach of the principle of equality of arms and the alleged interference by the legislature with the outcome of the dispute. |
955 | Restrictions on voting rights based on a residence criterion and exercise of the right to vote for non-resident citizens | III. RELEVANT WORK OF THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW 91. At its 51 st and 52 nd sessions on 5 and 6 July and 18 and 19 October 2002, the Commission European for Democracy through Law ( the Venice Commission) adopted its guidelines in electoral matters and an explanatory report on those guidelines. These two documents together constitute the Venice Commission ’ s Code of Good Conduct in Electoral Matters, which was approved by the Parliamentary Assemblée and the Congress of Local and Regional Authorities of the Council of Europe in 2003. 92. The relevant parts of the Code read as follows : Guidelines “ 2. Equal suffrage Equal suffrage entails : ... equal voting rights ...; ... equal voting power ...; equal opportunities ... 3.3. An effective system of appeal a. The appeal body in electoral matters should be either an electoral commission or a court. For elections to Parliament, an appeal to Parliament may be provided for in first instance. In any case, final appeal to a court must be possible. b. The procedure must be simple and devoid of formalism, in particular concerning the admissibility of appeals. c. The appeal procedure and, in particular, the powers and responsibilities of the various bodies should be clearly regulated by law, so as to avoid conflicts of jurisdiction (whether positive or negative). Neither the appellants nor the authorities should be able to choose the appeal body. d. The appeal body must have authority in particular over such matters as the right to vote – including electoral registers – and eligibility, the validity of candidatures, proper observance of election campaign rules and the outcome of the elections. e. The appeal body must have authority to annul elections where irregularities may have affected the outcome. It must be possible to annul the entire election or merely the results for one constituency or one polling station. In the event of annulment, a new election must be called in the area concerned. f. All candidates and all voters registered in the constituency concerned must be entitled to appeal. A reasonable quorum may be imposed for appeals by voters on the results of elections. g. Time-limits for lodging and deciding appeals must be short (three to five days for each at first instance). h. The applicant ’ s right to a hearing involving both parties must be protected. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION 93. Mr Riza and the DPS alleged that the annulment of the election results in 23 polling stations had amounted to an unjustified infringement of their right to stand for elections as guaranteed by Article 3 of Protocol No. 1 to the Convention. Under the same provision, the other 101 applicants (whose names are appended) alleged that the annulment of their votes had amounted to a violation of their active electoral rights. Further relying on Article 13 of the Convention, Mr Riza and the DPS submitted that domestic law had provided them with no remedy capable of redressing the alleged violation of their rights. 94. The Court observes from the outset that a distinction should be drawn between the present case and the case of Grosaru v. Romania (no. 78039/01, §§ 55-56, ECHR 2010), in which the post -electoral dispute involving the applicant had never been assessed by a court. In that case the Court conducted a separate examination of the complaint under Article 13. On the other hand, in cases concerning post -electoral disputes where domestic law entrusted consideration of such disputes to the judicial courts, the Court has opted for addressing the subject matter solely from the angle of Article 3 of Protocol No. 1 ( see Kerimova v. Azerbaijan, no. 20799/06, §§ 31-32, 30 September 2010, and Kerimli and Alibeyli v. Azerbaijan, nos. 18475/06 and 22444/06, §§ 29 and 30, 10 January 2012 ). 95. In the present case, the examination of the electoral dispute was assigned to the Constitutional Court, which delivered a final judgment. In the light of the specific facts of the case, and as it proceeded in the Kerimova and Kerimli and Alibeyli judgments ( cited above ), the Court considers that no separate issue arises under Article 13 of the Convention. It will, however, take into account the specific features of the proceedings conducted before the Bulgarian Constitutional Court in order to analyse the complaints under 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 ... 2. Compliance with the other admissibility criteria 109. The Government contested the victim status of Mr Riza, the DPS and the other 101 applicants. 110. They submitted in particular that Mr Riza had stood in the 2009 general elections as a party candidate in a multiple-member constituency in Bulgarian territory where parliamentary seats had been allocated according to the proportional system. Bulgarian voters living abroad, particularly in Turkey, had voted not for lists of candidates put forward by the political parties but for the parties themselves. Thus electors who had voted for the DPS in the polling stations in question had not voted explicitly for Mr Riza. Accordingly, the latter could not have validly claimed that the decision which had led to the annulment of the votes cast for his party in 23 polling stations in Turkey had had a direct negative impact on his right to stand in the general elections. 111. The Government added that the DPS also could not claim to have been the victim of a violation of its right to stand in elections, since it had taken part in the election under the same conditions as all the other parties and coalitions. By actively participating in the country ’ s political life and the elections, the party had implicitly agreed to obey the rules on the apportionment of seats and not to take advantage of any irregularities occurring during the voting procedure. The impugned judgment of the Constitutional Court had noted and remedied just such irregularities, and that decision had led to the annulment of the election of candidates from other political parties. Thus the impugned measure had not been aimed exclusively at the DPS and had not been implemented disproportionately and tendentiously. 112. As regards the other 101 applicants who voted in polling stations where the results were annulled by the Constitutional Court, the Government submitted that their voting rights had in no way been infringed. They pointed out in particular that the State had made the necessary arrangements to enable those concerned to cast their votes in their country of residence. The applicants ’ votes had not been declared null and void by the Constitutional Court ’ s judgment: the latter had been delivered in the framework of proceedings which had provided all the necessary safeguards against arbitrariness, and had merely deducted from the final outcome of the elections all the votes cast in the polling stations where the 101 applicants had voted on grounds of non-compliance with the legal obligation for the leaders of electoral committees to sign the additional lists of voters. Accordingly, the Constitutional Court ’ s judgment had not directly or sufficiently seriously infringed those applicants ’ active electoral rights. 113. Relying on the same arguments, the Government submitted, in the alternative, that the application lodged by the 101 electors should be rejected as being incompatible ratione materiae, manifestly ill-founded, and/or, pursuant to Article 35 § 3 (b) of the Convention, for lack of significant disadvantage. 114. The Court notes that all those objections can be summed up in a single plea disputing the applicants ’ victim status. It considers that that question is closely connected with the very substance of the complaints raised by the applicants under Article 3 of Protocol No. 1. It therefore holds that that objection should be joined to the merits of the complaints submitted by Mr Riza, the DPS and the other 101 applicants. ... B. Merits 1. The parties ’ submissions (a) The applicants 116. The applicants alleged that the judgment delivered by the Constitutional Court on 16 February 2010 had given rise to an unjustified infringement of their rights as secured under Article 3 of Protocol No. 1. 117. Mr Riza submitted that he had stood in the 2009 general elections as a candidate on the DPS list in the 8 th multiple-member constituency in Dobrich. Following the elections he had been declared elected to the National Assembly, and his party, the DPS, had been represented by 38 deputies in the national Parliament, 33 of whom had benefited from the proportional allocation of seats. The impugned judgment of the Constitutional Court had subsequently modified the election results : the DPS ’ s total was reduced by 18, 140 votes, which had led to the loss of one of its seats, Mr Riza ’ s, in the national Parliament. Mr Riza and the DPS considered that that situation amounted to an interference with the exercise of their right to stand in general elections. 118. The other 101 applicants had exercised their voting rights during the Bulgarian general elections. They had chosen to vote in 17 of the polling stations opened in Turkish territory. The Bulgarian Constitutional Court had, by its judgment of 16 February 2010, annulled the voting in 23 of the polling stations in Turkish territory, including those in which the applicants had voted. Their votes had thus been annulled. The 101 applicants considered that that situation amounted to an interference with the exercise of their right to participate as voters in the general election. 119. The applicants submitted that the decision -making process which had led to the modification of the election result had lacked adequate safeguards against arbitrariness. The procedure used by the Constitutional Court to reach its decision had been designed for assessing the constitutionality of legislation enacted by Parliament : the procedure had been completely unsuited to the assessment of an electoral dispute and, moreover, the regulations governing it had been defective. In the instant case, the precise subject matter of the dispute had not been determined from the outset of the proceedings, having only been established when the Constitutional Court had delivered judgment. The fact that the Constitutional Court had rejected all the appellants ’ arguments put forward one by one, but decided to annul the voting in in 23 polling stations because of formal defects which had been mentioned for the first time in the proceedings by an expert report, at the initiative of the experts in question, revealed a lack of clarity and foreseeability in that regard. The appellants had thus been exempted from the obligation to present evidence of the irregularities allegedly committed in the polling stations in question. The Constitutional Court had appropriated the power to investigate and to adjudicate ex officio on compliance with the overall criteria governing the fairness of voting in all the polling stations in which the Bulgarian citizens living in Turkey had voted. 120. The proceedings before the Constitutional Court had not been adversarial. Neither the DPS nor Mr Riza had been parties to the proceedings in spite of their express requests to that effect and despite the fact that, in their view, the dispute had concerned them directly. The only document in the case file to which they had had access was the initial statement of claim, which had been transmitted to them by the DPS deputies in the National Assembly. Those applicants had had no access to the other contents of the case-file, the additional arguments set forth by the appellants, the evidence gathered during the proceedings or the factual and legal issues discussed before the Constitutional Court. They had been deprived of any opportunity to defend their rights and legitimate interests in the framework of the proceedings. Furthermore, domestic law provided no remedy against the impugned judgment of the Constitutional Court. 121. The DPS, Mr Riza and the other 101 applicants submitted that the irregularities in the voting procedure noted in the judgment of the Constitutional Court had been minimal and should not have led to the annulment of the votes cast in the polling stations in question or of the voting procedure itself. The Constitutional Court had failed to consider whether the impact of the irregularities noted had been sufficiently serious to require the annulment of the voting in the 23 polling stations. 122. The applicants considered that none of those irregularities had pointed to any kind of electoral fraud. The Electoral Law did not require the chair and the secretary of the local electoral committee responsible for an out-of-country polling station to sign at the bottom of the list of voters registered on election day. Such a requirement applied to the “ additional lists ” drawn up solely in polling stations in the national territory. That was why almost all the lists of voters drawn up on election day in the polling stations in Turkey had not been signed. Moreover, the same requirement had not been complied with in polling stations in the national territory, although, according to the applicants, that had not affected the validity of the voting procedure in those stations. That being the case, the Constitutional Court ’ s affirmation that the signatures in question were a fundamental and obvious element for the validity of the voting lists had been completely arbitrary. 123. The applicants submitted that the electoral documents required for calculating out-of-country electoral results were the minutes of voting signed by the members of the local electoral committee and the diplomatic telegram sent by the Bulgarian representations in the country concerned. They explained that those two documents contained information on the number of persons voting, the number of spoiled votes and the number of votes cast for each party. Enclosed with the list of voters comprising identification data on and the signature of each person voting, as well as the ballot papers in the ballot box, those documents had been sufficient to detect any instance of electoral fraud. All those documents had been available for the 23 polling stations and no electoral fraud had been discovered. 124. The applicants added that the Constitutional Court had noted two further irregularities : the absence of minutes or of the first page of such minutes. In fact it was not the first but the second page of the minutes which provided the information required to calculate the results, that is to say the number of persons voting, the number of valid ballots, the number of spoiled votes, and the apportionment of votes among the different political parties. In the event that neither of the two pages of the minutes had been placed on file, the diplomatic telegram reproduced the same data. Those documents had indeed been filed away in respect of the 23 polling stations in question. 125. The Constitutional Court had itself acknowledged that the votes cast in the 23 polling stations had been valid, but had decided to deduct them from the election results owing to omissions which had been attributable neither to the voters, including the 101 applicants in the present case, nor to Mr Riza and the DPS. Furthermore, the media had reported many cases of similar omissions, such as the accidental destruction by maintenance staff at the Bulgarian Embassy in Washington of all the electoral documents from the polling stations operating in US territory. The lawfulness of the voting procedure in US territory had never been challenged, and the votes cast in those polling stations had been taken into account for the apportionment of seats in the National Assembly. 126. For those reasons, the applicants invited the Court to find that the impugned interference with the exercise of their respective rights to participate in the general elections as candidates / voters had not pursued any legitimate aim and had been totally unjustified under Article 3 of Protocol No. 1. ( b) The Government 127. The Government first of all disputed the existence of an interference with the exercise by the applicants of the rights secured under Article 3 of Protocol No. 1. 128. They pointed out that the DPS had put up numerous candidates for the 2009 general elections in single- and multiple-member constituencies, and that Mr Riza had been included in that party ’ s list of candidates for the 8 th multiple-member constituency. They denied that there had been any direct link between the annulment of the voting in the 23 polling stations in Turkish territory and the annulment of Mr Riza ’ s parliamentary seat. The Government considered that that decision had not affected the DPS ’ s political weighting, since it was still the third biggest political party in Bulgaria in terms of number of deputies elected to the National Assembly. 129. As regards the other 101 applicants, the Government considered that they had exercised their voting rights and that their votes had not been annulled by the Constitutional Court. On the contrary, the Constitutional Court had emphasised that those votes had been valid but had nonetheless not been counted owing to serious negligence on the part of the members of the electoral committees responsible for the polling stations in which the applicants had voted. 130. In the alternative, the Government submitted that even supposing there had been an interference with Mr Riza ’ s and the DPS ’ s passive electoral rights and with the other applicants ’ active electoral rights, that interference had been justified in the light of the arguments set out below. 131. The Government thus explained that the right to vote and the right to stand for election were guaranteed by the Bulgarian Constitution and that at the material time the voting procedure had been governed by the 2001 Electoral Law. Seats in the National Assembly had been allocated on the basis of all valid votes cast. That being the case, it had been vital for the lawfulness of the election to take into account only the valid votes in calculating the election results. In the Government ’ s view, that had been the only way to guarantee the protection of both the right to vote and the right to stand for election, inasmuch as it had ensured that deputies were elected to the national Parliament with the genuine support of the electorate. 132. The Government added that the domestic courts had applied Bulgarian electoral legislation in a clear and foreseeable manner. They stated that the judgment of the Constitutional Court disputed by the applicants had been geared to ensuring compliance both with electoral legislation and with the lawfulness of the election. 133. The Government further pointed out that according to the Electoral Law the Constitutional Court was the body competent to examine the lawfulness of the election of deputies. In the framework of its competences and pursuant to the above-mentioned legitimate aims, the Constitutional Court had conducted very careful scrutiny of the conditions for ensuring the regularity of voting in the polling stations operating in Turkish territory. It had ordered two expert assessments and examined their findings, and had received and taken into account the observations of all the parties concerned. Referring to the overall evidence amassed, it had noted serious omissions from the election material, particularly the lists of voters and the minutes of voting, which it submitted had affected the lawfulness of the voting procedure and necessitated the exclusion of the votes cast in 23 polling stations, including the 17 stations in which the 101 applicants in the present case had voted. The modification of the election results had led to a redistribution of parliamentary seats and the annulment of the seats of three deputies belonging to different political formations, that is to say the DPS, the RZS party and the Blue Coalition. The impact of the modification of the election results had thus been apportioned among several parties taking part in the general elections, and neither the DPS nor Mr Riza could validly claim that the impugned judgment had had the effect of exclusively infringing their rights and legitimate interests. 134. The Government submitted that there had been no sign of arbitrariness in the manner in which the judgment in question had been adopted and reasoned. The Constitutional Court had merely applied domestic electoral legislation. The alleged interference with the exercise of the rights to vote and to stand for election had not violated the substance of those rights; it had pursued a legitimate aim and observed a proper proportionality between the general interest and the applicants ’ rights. 135. The Government added that the Bulgarian authorities were determined to fight electoral practices that were incompatible with democracy, making them liable to criminal prosecution. Those practices included vote -buying and “electoral tourism ”, which consisted in organising transport out of the country for a large number of voters in order to skew the election results. 2. The Court ’ s assessment (a) General principles emerging from the Court ’ s case-law 136. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic principle of democracy and is accordingly of prime importance in the Convention system ( see Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 47, Series A no. 113, and Ždanoka v. Latvia [GC], no. 58278/00, § 103, ECHR 2006 ‑ IV). The role of the State, as ultimate guarantor of pluralism, involves adopting positive measures to “organise” democratic elections “ under 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). 137. Article 3 of Protocol No. 1 does not create any obligation to introduce a specific system such as proportional representation or majority voting with one or two ballots. The Contracting States have a wide margin of appreciation in that sphere. Electoral systems seek to fulfil objectives which are sometimes scarcely compatible with each other: on the one hand, to fairly accurately reflect the opinions of the people, and on the other, to channel currents of thought so as to promote the emergence of a sufficiently clear and coherent political will. In these circumstances the phrase “conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” implies essentially the principle of equality of treatment of all citizens in the exercise of their right to vote and their right to stand for election. It does not follow, however, that all votes must necessarily have equal weight as regards the outcome of the election or that all candidates must have equal chances of victory. Thus no electoral system can eliminate “wasted votes” ( see Mathieu-Mohin and Clerfayt, cited above, § 54). 138. According to the case-law of the Court, the words “free expression of the opinion of the people” mean that elections cannot be conducted under any form of pressure in the choice of one or more candidates, and that in this choice the elector must not be unduly induced to vote for one party or another. The word “choice” means that the different political parties must be ensured a reasonable opportunity to present their candidates at elections ( see Yumak and Sadak v. Turkey [GC], no. 10226/03, § 108, ECHR 2008). The Court has also ruled that once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic order ( see Lykourezos v. Greece, no. 33554/03, § 52, ECHR 2006 ‑ VIII). 139. Article 3 of Protocol No. 1 also covers subjective rights, including the right to vote and the right to stand for election (see Mathieu-Mohin and Clerfayt, cited above, §§ 46-51). 140. The right to vote, that is to say the “ active ” aspect of the rights guaranteed by Article 3 of Protocol No. 1, is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion ( see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 59, ECHR 2005 ‑ IX). Clearly, Article 3 of Protocol No. 1 does not provide for the implementation by Contracting States of measures to allow expatriates to exercise their right to vote from their place of residence. Nevertheless, since the presumption in a democratic State must be in favour of inclusion, such measures are consonant with that provision ( see Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 71, ECHR 2012). 141. As regards the passive aspect of electoral rights, it is not restricted to the mere possibility of standing for election: once elected, the person concerned is also entitled to sit as a member of parliament ( see Sadak and Others v. Turkey (no. 2), nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 33, ECHR 2002 ‑ IV, and Lykourezos, cited above, § 50 in fine ). Moreover, the Court has accepted that, when electoral legislation or the measures taken by national authorities restrict individual candidates ’ right to stand for election through a party list, the relevant party, as a corporate entity, could claim to be a victim under Article 3 of Protocol No. 1 independently of its candidates ( see Georgian Labour Party v. Georgia, no. 9103/04, §§ 72-74, ECHR 2008). 142. The Court then reiterates that the rights secured under Article 3 of Protocol No. 1 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; Ždanoka, cited above, § 103; and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). However, 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 Mathieu-Mohin and Clerfayt, cited above, § 52, and Ždanoka, cited above, § 104). 143. The Court must ensure that the decision-making process on ineligibility or contestation of election results is accompanied by criteria framed to prevent arbitrary decisions. In particular, such a finding must be reached by a body which can provide a minimum of guarantees of its impartiality. Similarly, the discretion enjoyed by the body concerned must not be exorbitantly wide; it must be circumscribed, with sufficient precision, by the provisions of domestic law. Lastly, the procedure for declaring a candidate ineligible must be such as to ensure a fair and objective decision and prevent any abuse of power on the part of the relevant authority ( see Podkolzina, cited above, § 35; Kovach v. Ukraine, no. 39424/02, §§ 54-55, ECHR 2008; and Kerimova, cited above, §§ 44-45). The Court also reiterates that under the subsidiarity principle it is not its task to replace the domestic courts in assessing the facts or interpreting domestic law. In the specific context of electoral disputes, it is not called up to determine whether the irregularities in the voting procedure complained of by the parties amounted to violations of the relevant domestic legislation ( see Namat Aliyev v. Azerbaijan, no. 18705/06, § 77, 8 April 2010). Its role in determining whether there was an unjustified interference in “ the free expression of the opinion of the people in the choice of the legislature ” is confined to establishing whether the decision given by the domestic court was arbitrary or manifestly unreasonable ( see Babenko v. Ukraine (dec.), no. 43476/98, 4 May 1999; Partija “ Jaunie Demokrati ” and Partija “ Musu Zeme ” v. Latvia (dec.), nos. 10547/07 and 34049/07, 29 November 2007; and Kerimli and Alibeyli, cited above, §§ 38-42). ( b) Application of those principles to the present case i. The existence of an interference with the exercise of the rights secured under Article 3 of Protocol No. 1 144. The Court considers that it should first of all seek to establish whether the situation complained of by the applicants amounts to an interference with their rights as guaranteed by Article 3 of Protocol No. 1. - As regards the active electoral right 145. The Court observes that at the material time the 101 applicants, whose names are appended to the present judgment, lived in Turkey. They voted in the 5 July 2009 general elections in 17 of the polling stations in Turkish territory. Their votes were initially taken into account in calculating the 4 % electoral threshold. The votes cast by the applicants for the six successful parties were then taken into account in apportioning seats among those political parties at the national level .... 146. In its judgment of 16 February 2010, which is the subject of the present application, the Bulgarian Constitutional Court decided to annul the elections in 23 polling stations opened by the Bulgarian diplomatic representations in Turkish territory and to deduct from the election results the votes cast in those polling stations, to a total of 18,358 votes. Those votes included those cast by the 101 applicants whose names are appended, as the 17 polling stations in which they had voted had been among the 23 in which the elections were annulled. 147. The Government submitted that the situation in question did not amount to an interference with the exercise of the 101 applicants ’ voting rights : they argued that the latter had exercised their right to vote, but that their votes had not been counted in the allocation of seats in the National Assembly because there had had been serious irregularities in the voting procedure in their polling stations. The Court begs to differ. 148. The active electoral right as guaranteed by Article 3 of Protocol No. 1 is not confined exclusively to the acts of choosing one ’ s favourite candidates in the secrecy of the polling booth and slipping one ’ s ballot paper into the box. It also involves each voter being able to see his or her vote influencing the make-up of the legislature, subject to compliance with the rules laid down in electoral legislation. To allow the contrary would be tantamount to rendering the right to vote, the election and ultimately the democratic system itself meaningless. 149. Those considerations lead the Court to note that the impugned judgment of the Constitutional Court did have a direct impact on the voting rights of the 101 applicants in question. Their votes were excluded from the election results : they were not taken into account in calculating the 4 % electoral threshold, and those of the 101 votes which were cast for the first six parties in the elections were not taken into account in apportioning seats among those parties at the national level .... - As regards the passive electoral right 150. The Court observes that Mr Riza and the DPS stood in the 5 July 2009 Bulgarian general elections: the DPS was registered by the Central Electoral Commission as a party participating in the election, put up several candidates in the multiple- and single-member constituencies in Bulgarian territory and was included on the ballot paper specially designed for voting outside the national territory; Mr Riza was in second place on his party ’ s list of candidates in the 8 th multiple-member constituency in Dobrich (see paragraph 14 above). After the initial publication of the election results and the first allocation of seats on 7 July 2009, the DPS obtained 33 seats in the National Assembly under the proportional system, and five further seats under the majority system ( see paragraph 20 above ). Mr Riza was not elected to Parliament ( see paragraph 21 above ). However, following a Constitutional Court appeal lodged by a candidate for another political party, which was ultimately successful, a second proportional distribution of seats was organised: the DPS lost one of its two seats in the 19 th multiple-member constituency but obtained a second seat in the 8 th multiple-member constituency, which was assigned to Mr Riza as the second candidate on his party ’ s list in that constituency (ibid.). Accordingly, as at 12 October 2009 the DPS ’ s score in the elections totalled 610, 521 votes and the party had 38 deputies in Parliament, including Mr Riza. The latter was subsequently elected to one of the standing committees in the National Assembly. 151. The Constitutional Court judgment affected the situation of those two applicants, who had stood for the general election in question. The DPS had 18,140 votes deducted from its total electoral score. The ensuing redistribution of seats led to changes in the composition of the national Parliament : the DPS lost one parliamentary seat to the political party which had won the elections under the proportional system, and Mr Riza lost his mandate as a deputy ( see paragraphs 48 and 49 above ). Thus the applicant party ’ s electoral score under the proportional system fell by some 3 %; its parliamentary group was reduced from 38 deputies to 37, and Mr Riza forfeited his position as a representative in the National Assembly. - The Court ’ s conclusion 152. In the light of the above facts, the Court considers that the situation complained of by the applicants amounts to an interference with the exercise of their respective rights to vote in and stand for general elections as secured under Article 3 of Protocol No. 1. It also considers that the same arguments require it to reject the Government ’ s objection regarding the applicants ’ lack of victim status ( see paragraph 114 above ). ii. Justification for the interference in question 153. The Court must therefore satisfy itself that the interference in question did not limit the applicants ’ active and passive electoral rights to the extent of affecting their very substance and depriving them of their effectiveness, that it pursued a legitimate aim and that the means used were not disproportionate to the aim pursued. 154. The Court notes that the parties disagree as to the purpose of the impugned measures. The applicants considered that the annulment of the voting in 23 out-of- country polling stations had not pursued any legitimate aim, whereas the Government submitted that the scrutiny conducted by the Constitutional Court had been geared to ensuring compliance with electoral legislation. 155. The Court observes that the proceedings before the Constitutional Court which led to the judgment complained of by the applicants were based on Article 149, ( 1 ) ( 7 ) of the Constitution and section 112 of the 2001 Electoral Law. Those provisions allowed any person standing in the general elections to contest the lawfulness of the election of deputies to the National Assembly .... Such disputes often concern compliance with the rules on voting and vote-counting in one or more polling stations, and may lead to the invalidation of some of the votes and a change in the total number of votes obtained by each individual candidate or political party. In proportional election systems, changing the electoral score of political formations, sometimes just in one single polling station, can lead to a redistribution of parliamentary seats and an increase or decrease in the number of seats allocated to the various parties or coalitions. That is exactly what happened in the present case. The impugned proceedings were brought by the President of the RZS political party and three of its candidates, seeking to contest the lawfulness of the election of seven DPS deputies under the proportional system in the framework of the Bulgarian election system. The appellants complained of several irregularities in the voting procedure in the 123 polling stations in which Bulgarian citizens living in Turkey had exercised their voting rights ( see paragraph 22 above ). Accordingly, the Court accepts that the proceedings before the Constitutional Court had the legitimate aim of ensuring compliance with electoral legislation and therefore the lawfulness of the voting and the election results. 156. The Court considers that the next step must be to establish whether the decision-making process was surrounded by adequate safeguards against arbitrariness. In doing so it must ascertain whether that process complied with the requirements as set out in its well-established case-law ( see paragraph 143 above ). 157. The applicants submitted that the proceedings before the Constitutional Court had been unsuited to the assessment of post -electoral disputes. They observed that the application of the procedural rules laid down in the Law on the Constitutional Court and its implementing regulations had resulted in a set of proceedings that had lacked any clearly determined purpose, remained inaccessible to the DPS and Mr Riza and been unappealable (see paragraphs 119 and 120 above). The Government considered that the two applicants had been involved in the proceedings to the extent required in order to defend their interests, as the Constitutional Court had considered their observations and replied to them in its judgment of 16 February 2010 ( see paragraph 133 above ). 158. The Court observes from the outset that the applicant party disputed neither the independence nor the impartiality of the Bulgarian Constitutional Court dealing with the post-electoral case in question. It sees no reason to reach any different conclusion on that matter. 159. The Court then notes that the Law on the Bulgarian Constitutional Court and its implementing regulations only provide for one type of proceedings for all cases submitted to it. The same procedural rules are therefore applicable to cases concerning the compatibility with the Constitution of domestic legislative provisions and to disputes concerning the lawfulness of general elections and election results. In the present case it is not the Court ’ s task to adjudicate in abstracto on the compatibility with the Convention and its Protocols of the legislature ’ s approach. It will confine itself to assessing whether, in the instant case, the proceedings in issue allowed the applicants to defend their legitimate interests effectively, as persons or parties participating in general elections. 160. In the initial complaint on which the impugned proceedings were based, the leader of the RZS political party and three of its members contested the lawfulness of the election of seven DPS deputies, alleging serious violations of electoral legislation in all the polling stations operating in Turkish territory ( see paragraph 22 above ). The proceedings led to the annulment of the elections in 23 of the 123 polling stations in question and to the cancellation of Mr Riza ’ s parliamentary mandate, which had not been included in the initial complaint. The Court observes that that situation is the result of the combined effect of three specific aspects of the Bulgarian electoral system : the allocation under proportional representation at the national level of 209 parliamentary seats among the different political parties; the consideration of out-of-country votes solely for that allocation of seats at the national level; and the subsequent allocation of seats won by each party in the 31 multiple-member constituencies in Bulgaria. Having regard to those specific features of the Bulgarian electoral system, the decisions whether to annul one or more parliamentary mandates and which mandates to annul depended on the number of votes invalidated and their apportionment among the different parties. The Constitutional Court therefore had first of all to establish whether the voting procedure had been sufficiently seriously flawed to require the annulment of the results of voting. The Constitutional Court chose to limit the territorial scope of its assessment of observance of electoral legislation to the polling stations specially opened in Turkish territory because those stations had been explicitly mentioned in the initial complaint submitted to it. The Court will not question the domestic court ’ s choice in this respect. 161. All the parties ’ observations and the expert reports presented to the Constitutional Court concerned the question whether there had been irregularities in the voting procedure in the polling stations in Turkey, and if so, whether those irregularities had been sufficiently serious to justify annulling the results ( see paragraphs 22 and 25-37 above ). The reasoning set out by the Bulgarian Constitutional Court in its judgment of 16 February 2010 had been based on the same questions ( see paragraphs 38-48 above ). The Court considers that all these elements show that the subject matter of the dispute before the Constitutional Court, that is to say the alleged irregularity of the voting procedure in all the polling stations operating in Turkish territory, was known to all those taking part in the proceedings right from the outset. 162. The wording of section 112 of the 2001 Electoral Law suggested that a dispute concerning the alleged unlawfulness of the election of a deputy necessarily involved the latter and the natural or legal persons disputing his or her election .... The applicant party relied on that provision to argue that the DPS and Mr Riza had been parties to the proceedings right from the outset, and at the very least since their explicit request to join the proceedings on 15 and 16 February 2010. However, it cannot be overlooked that Rule 21 (1) of the Rules of the Constitutional Court confers on it the discretionary power to determine the parties involved in proceedings before it .... It was in the framework of that power that the Constitutional Court designated a number of State institutions and bodies and two non- governmental organisations as parties to the proceedings ( see paragraph 24 above ). 163. It is true that the Constitutional Court did not reply to the request submitted by Mr Riza and the DPS to be joined as parties to the proceedings. On the other hand, the National Assembly joined as a party to the proceedings on 11 August 2009 ( see paragraph 24 above ). The Court will not question the Constitutional Court ’ s choice in this regard. Owing to the specific features of the Bulgarian electoral system ... it was impossible to foresee which party or individual candidate would be affected by the final decision. In that framework, designating the National Assembly as a party to the proceedings before the Constitutional Court seemed logical because all the deputies were potentially concerned by the future judgment of that court and all the political parties which had participated in the allocation of seats under the proportional system were represented in the Assembly. 164. On the date on which Parliament was officially designated as a party to the proceedings, the DPS had a parliamentary group comprising 38 deputies. Mr Riza, who is a Vice- President of the party, joined the ranks of his parliamentary group in October 2009 ( see paragraphs 20 and 21 above ). The two applicants acknowledged that it was through the intermediary of the parliamentary group that Mr Riza and the party organs had obtained a copy of the initial statement of claim ( see paragraph 120 above ). The Court notes that the DPS parliamentary group played a much more active role in the impugned proceedings before the Constitutional Court than the applicants would admit. Through the intermediary of the national Parliament the DPS parliamentary group presented observations on both the admissibility and the merits of the case, in which it countered the arguments set out in the appellants ’ complaint ( see paragraph 25 above ). The Constitutional Court replied to those observations in its judgment of 16 February 2010 (see paragraphs 39-48 above). The DPS parliamentary group also pronounced on the additional expert assessment ordered by the Constitutional Court on 27 January 2010, contesting the criteria used in order to deduct from the election results the votes cast in the 23 polling stations in Turkey ( see paragraph 34 above ). Those criteria subsequently proved decisive for the outcome of the proceedings ( see paragraphs 46-48 above ). 165. In the light of all the above factors, the Court notes that during the proceedings before the Constitutional Court the DPS parliamentary group actively defended the interests of its political party and those of Mr Riza, who was a party member. Moreover, it would appear that through the intermediary of the national Parliament, which was officially a party to the proceedings, the parliamentary group, and therefore the two applicants, had access to all the documents in the case file and were regularly updated on the progress of the proceedings ( see, in particular, the content of their individual requests for leave to join the proceedings as parties in paragraph 37 above ). Having regard to the circumstances of the case and notwithstanding that the two applicants were not officially parties to the impugned proceedings, the Court considers that they did actually participate in the proceedings through the intermediary of the DPS parliamentary group and that they had an opportunity to set forth their arguments against the annulment of the election results in the polling stations in Turkish territory and to contest effectively the arguments presented by the appellants. 166. The DPS and Mr Riza also complained that no appeal had lain against the Constitutional Court ’ s judgment. The Court observes in that regard that none of the provisions of the Convention or the Protocols thereto require Contracting States to put in place an appeal system for electoral disputes, let alone provide for an appeal against Constitutional Court judgments, where States opt for assigning the adjudication of post-electoral disputes to such superior courts. It should also be noted that in its Code of Good Conduct in Electoral Matters, the Venice Commission recommends introducing the possibility of appealing to a tribunal solely where the first-instance decisions have been given by specialised bodies such as electoral committees ( see paragraph 92 above ). 167. All the applicants contested the reasons on which the Constitutional Court had based its decision to annul the voting in 23 polling stations. The Court reiterates that it is not its task to replace the domestic courts in assessing the facts or interpreting domestic law, in this case the Bulgarian Electoral Law. It must, however, satisfy itself that the decision given by the domestic court was not arbitrary or manifestly unreasonable ( see paragraph 143 above ). 168. The Court observes that the Bulgarian Constitutional Court noted the following irregularities in the electoral documents in order to justify the annulment of the voting in the 23 polling stations in question : the failure to put on file the minutes of voting in one polling station; no first page for the minutes of voting or no information on the first page concerning the number of persons voting; and failure of the chair and secretary of the local electoral commission to sign at the bottom of the list of voters registered on election day ( see paragraph 46 above ). The Bulgarian Constitutional Court accepted that the minutes of voting constituted the main document establishing the facts concerning voting in a given polling station, and that the absence of the first page of that document and the signatures at the bottom of the additional list of voters affected its probative value vis-à-vis the reality of the voting in the polling station in question ( see paragraphs 46 and 47 above ). 169. The Court notes that the minutes of voting as defined by Bulgarian legislation plays a dual role in the voting process: the second page of the minutes sets out the results of the voting, and it is on the basis of those data that the Central Electoral Commission determines the election results ...; the first page of the minutes also contains the number of persons registered on the electoral roll and the number of those who actually voted on election day ... and thus serves as a basis for comparison with the electoral rolls in detecting various types of electoral fraud, such as ballot-box stuffing and the inclusion of fictitious voters on the lists of persons voting. In the present case, there were no minutes on file for just one of the polling stations in Turkish territory; as regards the other three, the first page of the minutes was missing; and in respect of another polling station the minutes failed to record the number of persons who had voted on election day ( see paragraph 33 above ). 170. The Court observes that it was only in the last of those five polling stations that the irregularity concerning the minutes was, in all likelihood, committed on election day by the members of the local electoral commission and that that irregularity can therefore be considered as circumstantial evidence of electoral fraud. Given that the electoral documents from out-of-country polling stations had first of all been handed over to the Bulgarian diplomatic representatives at the close of voting on election day and only then been sent on to the Central Electoral Commission in Bulgaria ..., it cannot be ruled out that the minutes from the first of those polling stations and the first page of the minutes from the other three had gone missing at that stage. The Constitutional Court failed to look into that possibility, despite the reports from some of the members of the Central Electoral Commission that the electoral documents from Turkey had previously been opened and then resealed before being sent to the Commission ( see paragraph 36 above ). 171. Without seeking to establish whether the minutes from those four polling stations had in fact been completed, signed and handed over in their entirety to the Bulgarian diplomatic services in Turkey by the corresponding local electoral commissions, the Constitutional Court merely noted their total or partial absence from the files of the competent State bodies, which automatically led to the annulment of the voting in those four polling stations. The Constitutional Court thus based that part of its decision on a factual finding which did not in itself demonstrate that there had been any kind of irregularity in the voting procedure in the four polling stations. 172. The Constitutional Court decided to annul the elections in another 18 polling stations on the grounds that the lists of voters registered on the day of the elections had been signed neither by the chair nor the secretary of the local electoral commission. Its judgment acknowledged that the Electoral Law did not explicitly require such signatures. It nonetheless considered that such signature was one of the fundamental and obvious components of any official document and that the model “ additional list of voters ” approved by Presidential Decree provided for such signatures ( see paragraph 47 above ). The Constitutional Court thus applied by analogy the provisions on “ additional lists of voters ” and “ under -the- line lists ” drawn up in the polling stations in Bulgarian national territory ... to the specific case of the lists of non-preregistered voters drawn up on election day in the out-of-country polling stations. It annulled the voting in the 18 polling stations on the grounds that the irregularities noted in the voting lists had irremediably affected the probative value of the minutes of voting. 173. It transpires from the case file that all the electoral documents from those 18 polling stations (ballot-papers, minutes and electoral lists ) had been filed and placed at the disposal of the experts and the members of the Constitutional Court. The Court observes that the lack of the two signatures is the only irregularity that was found in those electoral documents. Moreover, the Constitutional Court acknowledged in its judgment that the absence of the signatures of the local electoral commission officials only cast doubt on the probative value of the lists of voters and consequently the accuracy of the data set out in the minutes of voting, and not the validity of the votes cast. 174. Clearly, non-compliance with the formal requirements concerning electoral lists may point to fraud relating to the composition of the electorate. However, the Court considers that that was not necessarily the case in the specific context of the present case. It cannot be overlooked that at the material time there were omissions in the Bulgarian electoral legislation concerning the formalities to be observed by out-of-country local electoral commissions when registering voters on the electoral lists on election day. The Constitutional Court came up against that problem in the present case, and it resorted to application by analogy of the Electoral Law in order to fill the legal vacuum left by the legislature ( see paragraph ... 47 ... above ). However, the 18 lists of voters in question were not the only ones lacking the two signatures in question. In fact, this was a recurrent formal omission because the additional lists of voters had not been signed by the chairs and secretaries of the electoral commissions in a total 116 of the 123 polling stations in Turkish territory ( see paragraph 29 above ), which amounted to some 42 % of all the out-of-country polling stations ( see paragraph 13 above ). The Court considers that that information only confirms its finding that domestic legislation was insufficiently clear on this specific point. Under those circumstances it considers that that omission, which is purely technical in nature, does not in itself demonstrate that the voting procedure in those 18 polling stations involved irregularities justifying the annulment of the election results. 175. The Constitutional Court used an additional criterion to annul the election results in the 18 polling stations in question, that is to say the fact that none of the pre-registered voters had cast their votes in those stations. The Court nevertheless observes that domestic legislation did not require Bulgarian citizens to vote on election day, even where they had previously declared their intention to exercise their voting rights. The criterion in question is therefore a complementary one which cannot in itself reveal any particular irregularity in the voting procedure. The Constitutional Court used it exclusively to eliminate the votes cast by persons included on the unsigned additional lists. 176. These facts are sufficient for the Court to conclude that the decision -making process implemented by the Bulgarian Constitutional Court did not comply with the standards developed in the Court ’ s case-law ( see paragraph 143 above ). In particular, the Constitutional Court annulled the election in 22 polling stations on purely formal grounds. Moreover, the elements on which that court relied to justify that part of its decision were not set out clearly and foreseeably enough in domestic law, and it had not been demonstrated that they had affected the electorate ’ s choice and distorted the election results. 177. As regards the last polling station, where the results were annulled on the grounds that the number of persons voting was not mentioned on the first page of the minutes (see paragraphs 169 and 170 above), the Court observes that the Bulgarian Electoral Law in force at the material time infringed the recommendations of the Venice Commission ’ s Code of Good Conduct in Electoral Matters ( see paragraph 92 above ) by failing to provide for the possibility of organising fresh elections in the event of annulment of voting .... Such a possibility was not introduced into domestic legislation until 2011, and the rule was only applicable where the election results had been annulled in their entirety (ibid. ). It is clear that the impossibility of holding fresh elections had at no stage been considered by the Constitutional Court in deciding whether the annulment of the election results, under the particular circumstances of the case, would be a measure proportionate to the aim sought to be achieved under Article 3 of Protocol No. 1, whose purpose is to ensure the free expression of voters ’ wishes. 178. The Court bears in mind that organising fresh elections in the territory of another sovereign country, even in a small number of polling stations, is always liable to come up against major diplomatic and operational obstacles and occasion additional cost. However, it considers that the holding of new elections in the last polling station, where there was cogent circumstantial evidence that the electoral commission was responsible for irregularities in the voting procedure on election day ( see paragraph 170 above ) would have reconciled the legitimate aim of annulling the election results, that is to say protecting the lawfulness of the electoral procedure, with the subjective rights of the voters and candidates in the general elections. The Court observes that the judgment of the Bulgarian Constitutional Court also failed to take that factor into account. 179. On those grounds, the Court considers that the annulment by the Bulgarian Constitutional Court of the election results in the polling stations in question, the cancellation of Mr Riza ’ s parliamentary mandate and the DPS ’ loss of a parliamentary seat assigned under the proportional system amounted to an interference in the exercise of the 101 applicants ’ active electoral rights and of Mr Riza ’ s and the DPS ’ passive electoral rights. Having regard to the lacunae noted in domestic law and the lack of any possibility of organising fresh elections, the impugned judgment, which was based on purely formal arguments, occasioned an unjustified infringement of the 101 applicants ’ and Mr Riza ’ s and the DPS ’ rights to take part in the general elections as voters and candidates respectively. There were therefore two separate violations of Article 3 of Protocol No. 1. ... III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 185. 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 186. The first applicant, Mr Risa, claimed EUR 60,155 in respect of pecuniary damage, explaining that that amount was the equivalent of four years ’ deputy ’ s salary which he would have received in the national Parliament. He also claimed EUR 15, 000 in respect of non-pecuniary damage. 187. In respect of pecuniary damage, the second applicant, the DPS, claimed an amount equal to that which it would have received in State subsidies for four years if the 18,140 votes cast for the party in the 23 polling stations in question had not been deducted from its electoral score. It presented two estimates of that sum computed in accordance with two different methods of calculation which, it submitted, depended on the changes in domestic legislation in connection with the calculation and payment of the State subsidy to political parties ... : EUR 395,507 under the first method and EUR 335,740 under the second. 188. The other 101 applicants considered that the finding of a violation of their right as guaranteed by Article 3 of Protocol No. 1 would in itself amount to sufficient just satisfaction. 189. The Government objected to the claims submitted by Mr Riza and the DPS. They invited the Court to declare that the finding of a violation would constitute sufficient just satisfaction. In the alternative, they submitted that the claims lodged by the first two applicants were excessive and unsubstantiated. 190. As regards pecuniary damage, the Court observes that Mr Riza and the DPS claimed sums which they stated represented the earnings lost owing to the impugned judgment of the Bulgarian Constitutional Court for a period of four years, that is to say the whole of the 41 st parliamentary term. The Court considers that those claims are not sufficiently substantiated, for the reasons set out below. 191. First of all, the Court notes that the two applicants based their estimates on the presumption that the 41 st National Assembly would complete its four-year term. In fact the Assembly was dissolved by Presidential Decree before it could complete its term ( see paragraph 52 above ). Secondly, the Court observes that Mr Riza, like all national parliamentary deputies, could not have been sure that he would complete his four-year term and that he did not specify the amount of alternative income he received between the time of cancellation of his mandate and the end of the 41 st parliamentary term. Thirdly, the Court notes that the finding of a violation in the present case is based not only on the annulment of the elections in the polling stations in question but also on the fact that no new elections could be organised ( see paragraphs 176-178 above ). Thus the Court is not in a position to calculate the DPS ’ lost earnings on the basis of the difference between the annulled votes and the votes which the party would have obtained following hypothetical new elections. 192. The Court consequently considers that these two applicants ’ claims in respect of pecuniary damage should be rejected. 193. As regards compensation for alleged non-pecuniary damage, in view of the specific circumstances of the case the Court considers that the finding of a violation of the voting rights of the 101 applicants listed in the appendix and the finding of a violation of Mr Riza ’ s right to stand for election represent sufficient just satisfaction for the non-pecuniary damage which they sustained. B. Costs and expenses 194. The DPS also claimed EUR 5,300 for costs and expenses, which sum corresponded to the legal fees incurred before the Court. The other 101 applicants claimed EUR 3, 400 for costs and expenses, which sum they stated corresponded to legal fees incurred before the Court. 195. The Government considered that the sums claimed under this head by the applicants were excessive and unsubstantiated. 196. 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. 197. In the present case, the Court observes that all the applicants were represented by the same lawyer and that the pleas put forward by the applicants were largely identical. In view of those circumstances, the documents presented and its relevant case-law, the Court considers it reasonable to award the sum of EUR 6, 000 EUR jointly to the DPS and the other 101 applicants. C. Default interest 198. 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 in respect of the voting rights of the 101 applicants, finding that, in view of the lacunae in domestic law and the lack of any possibility of holding fresh elections, the impugned judgment of the Constitutional Court, which was based on purely formal arguments, had caused an unjustified breach of their rights to participate in the legislative elections as voters. The Court stated in particular that it did not overlook the fact that the organisation of fresh elections in another sovereign country, even in only a limited number of polling stations, might face major diplomatic or organisational obstacles and entail additional costs. It found, however, that the holding of fresh elections, in a polling station where there had been serious anomalies in the voting process on the part of the electoral board on the day of the election, would have reconciled the legitimate aim behind the annulment of the election results, namely the preservation of the legality of the electoral process, with the rights of the voters and the candidates standing for election to Parliament. |
218 | Access to a lawyer | II. RELEVANT DOMESTIC LAW 36. The relevant domestic law can be found in the judgment in the case of Kozinets v. Ukraine ( no. 75520/01, §§ 39-42, 6 December 2007). THE LAW I. PRELIMINARY OBSERVATION 37. The applicant died on 4 March 200 5, while the case was pending before the Court (see paragraph 4 above). 38. The Government submitted that the applicant's mother can pursue the proceedings after the applicant's death as his close relative. She, however, cannot be considered the victim of violations of the Convention in his respect. 39. The Court finds that while the applicant's mother has not been directly affected by the violations of the Convention complained about by the applicant, following his death she has standing to pursue the present proceedings on his behalf (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 applicant throughout the ensuing text. II. ALLEGED ILL-TREATMENT AND INEFFECTIVE INVESTIGTION OF THE ILL-TREATMENT COMPLAINT 40. The applicant complained that he had been ill-treated by police officers whilst in custody in November 2002, to obtain his confession that he had participated in P.'s robbery. He further complained that there had been no effective investigation into his complaint of ill-treatment. The applicant relied on Articles 3 and 13 of the Convention. 41. The relevant Articles of the Convention read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 42. The Government submitted that the applicant's complaint of ill ‑ treatment was inadmissible for non-exhaustion of domestic remedies, as the applicant's mother had never appealed against the prosecutor's office's refusal of 5 June 2006 to institute criminal proceedings into his ill-treatment complaint. 43. The applicant insisted that between November 2002 and June 2006 he had lodged numerous complaints with various competent authorities, all to no avail, as the prosecutor's office was plainly unwilling to conduct a real investigation. The investigation had therefore been ineffective and it was futile to appeal against a further refusal to investigate his complaint. 44. The Court considers that the Government's objection raises an issue which falls to be examined under Article 3 of the Convention together with the complaint about the ineffectiveness of the investigation, and accordingly joins it to the merits of the applicant's complaint. B. Merits 1. Submissions of the parties 45. The applicant alleged that he had sustained permanent health damage as a result of his ill-treatment by the police. In particular, he suffered from chronic pyelonephritis and the after-effects of a head injury, including depression and suicidal thoughts. He maintained that his injuries had been inflicted on him by the police when they questioned him on 18 and 19 November 2002 in the absence of his parents or a lawyer. The applicant further submitted that under duress he had first made a self-incriminating statement on 18 November 2002, and that he had confirmed it on 21 November 2002 in the presence of his mother and a lawyer, because the police had threatened not to release him otherwise. After recovering from the stress and hiring a new lawyer upon his release, the applicant had retracted his confession. 46. The applicant further submitted that immediately upon his release he had notified various authorities, including the local prosecutor's office, of the unlawful conduct of the police officers in his respect. The prosecutor's office, however, had refused to take note of his complaint or even to refer him for a forensic examination of his injuries. It was only a day later (23 November 2002) that he managed to obtain such a referral from the Internal Security department of the local police, which was not competent to investigate his complaint. He further alleged that the prosecutor's office was unwilling to investigate the real circumstances in which he had sustained his injuries. This fact was witnessed by the numerous refusals to institute criminal proceedings, which relied primarily on mere statements by the police officers involved denying any ill-treatment, without the reason for the injuries being established. The applicant also alleged that the prosecutor's office had regularly delayed in informing him of its decisions rejecting his complaints, making it hard for him to appeal against them. 47. The Government objected to these arguments. They stated, in particular, that the applicant had not been questioned concerning the robbery during his stay in custody. He had confessed to the robbery in the presence of his mother and a lawyer. Upon his placement in the detention centre, the applicant had been medically examined and found to have no injuries. The injuries complained of could have been sustained under various circumstances, after his release, including falls to the ground or blows from blunt objects, for example. It was not until 1 April 2003 that the applicant had lodged a formal request to initiate criminal proceedings against the police officers. Notwithstanding the lapse of time, the prosecutor's office had taken all necessary measures to investigate the possible ill-treatment and dismissed the applicant's complaint for want of evidence. As the applicant's heirs had failed to appeal against the decision of 5 June 2006, further investigation had not been possible. 2. The Court's assessment ( a ) Concerning the alleged ill-treatment 48. Viewing facts of the present case in light of the general principles determined in its case-law (see, for example, Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241 ‑ A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336 and Vergelskyy v. Ukraine, no. 19312/06, § 106, 12 March 2009 ), the Court notes that according to expert findings of 23 November 2002 and 27 January 2005, which the parties did not challenge, the applicant sustained bruises, abrasions and other injuries on various parts of his body, which could have been inflicted on 18 November 2002 (the day of his placement in custody) by multiple impacts with blunt objects (see paragraphs 18 and 31 above). The applicant's account of the circumstances, in which he suffered these injuries, namely, application of force by the police officers during his interrogations, is sufficiently detailed and consistent with the expert findings. The Government has failed to provide any coherent and substantiated alternative account of the relevant events, in spite of several years of investigations. In these circumstances the Court finds that the State is responsible for the above injuries, which amounted to the applicant's ill-treatment. 49. At the same time, the Court finds noteworthy the circumstances surrounding the applicant's arrest, his placement in custody and his questioning about the robbery. First of all it recalls that the applicant's three ‑ day placement in administrative detention was officially declared unlawful by the domestic judicial authorities (see paragraph 11 above ). 50. It further notes that neither the refusals of the prosecuting authorities to initiate criminal proceedings, nor the Government's observations, contain any response to the applicant's allegations that his initial forced delivery to the police at noon on 18 November 2002 was not based on any legal ground. In particular, it appears that when the police stopped him on a public street, the applicant had not been engaged in any criminal activity capable of justifying his arrest, nor had he been ordered to report to the police on the basis of an official summons, either as a suspect or as a witness. Moreover, it was not until 19 November 2002 that criminal proceedings were instituted in respect of P.'s robbery complaint. Although the applicant was a minor at the material time, neither his parents nor a lawyer were informed of his arrest and the applicant lacked any representation before the court that sentenced him to administrative detention. 51. Finally, although the Government and the prosecutor's office alleged that the applicant was not questioned about the robbery during his custodial sentence, the applicant provided copies of his confessions and self ‑ incriminating explanations dated 18 and 19 November 2002 signed by the applicant and the law-enforcement officers (no signature of a lawyer or a minor's legal representative present – see paragraph 15 above). Likewise, on 15 January 2004 the Bilgorod-Dnistrovsky Court noted that the prosecutor's office's conclusion that the applicant had not been questioned during his detention was in contradiction with other case-file materials. 52. The fact that the applicant, a minor at the material time, first confessed to the robbery during his administrative detention in a setting lacking procedural guarantees, such as availability of a lawyer, and retracted his confession upon his release, points to the conclusion that his confession may not have been given freely. This, in conjunction with the ambiguous circumstances surrounding the applicant's arrest and the unlawfulness of his administrative detention, gives rise to a strong suspicion that regardless of whether the police resorted to physical violence (see paragraph 48 above), they arrested the applicant and placed him in detention as a means of breaking his moral resistance and using his vulnerable emotional state to obtain self-incriminating statements. 53. The Court finds that such practice is contrary to Article 3 of the Convention (see, mutatis mutandis, Jalloh v. Germany [GC], no. 54810/00, § 82, ECHR 2006 ‑ IX, and Gäfgen v. Germany, cited above, § 131) and, especially given the applicant's vulnerable age, qualifies as inhuman and degrading treatment. 54. In the light of the above, the Court concludes that there has been a breach of Article 3 of the Convention in respect of the applicant's ill-treatment in custody. ( b) Concerning the effectiveness of the investigation 55. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by 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 (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, p. 3290, § 102 ). 56. As regards the circumstances of the present case, the Court notes that the applicant promptly informed the law-enforcement authorities of his alleged ill-treatment. The investigation, which lasted more than three years, did not establish the circumstances surrounding his complaint and did not identify the person or persons (if any) responsible for his injuries. 57. The Court further notes that the investigation was closed on a number of occasions, as the prosecutor's office was not able to detect evidence of ill-treatment. At various times the decisions to close the investigation were set aside by administrative or court orders, as the prosecutor's office had failed to employ all the means available to it to establish the circumstances surrounding the applicant's complaint. 58. The prosecuting authorities largely repeated the same conclusions in all of their refusals. In spite of the instructions issued by the courts and supervising prosecutorial authorities (see paragraphs 26, 28 and 29 above), the investigation provided no specific answers to the particular allegations raised by the applicant in his complaints. In particular, it did not find any plausible explanation as to the reason for his injuries, or provide a substantiated response to his arguments concerning the unlawfulness of his arrest and detention or his allegations that he had been questioned about P.'s robbery in violation of procedural guarantees enshrined in the Code of Criminal Procedure. The Court specifically recalls that on 15 January 2004 the Bilgorod-Dnistrovsky Court found that the prosecutor's office's allegation that the applicant had not been questioned about the robbery during his term in custody contradicted the evidence in the case file. Notwithstanding that finding, the subsequent refusals to initiate criminal proceedings reiterated the same conclusion, without further reasoning. 59. In these circumstances, the Court does not have reason to believe that yet another appeal by the deceased applicant's heirs would redress the earlier shortcomings and render the investigation effective. 60. The Court finds that the factual circumstances surrounding the investigation of the applicant's complaint of ill-treatment in the present case are similar to the situations in which it has found violations in a number of recent cases (see, inter alia, Mikheyev v. Russia, no. 77617/01, §§ 112-113 and 120-121, 26 January 2006; Kobets v. Ukraine, no. 16437/04, §§ 53-56, 14 February 2008; and Vergelskyy v. Ukraine, no. 19312/06, § 102, 12 March 2009 ). 61. In the light of the circumstances of the present case and its settled case-law, the Court concludes that there has been a violation of Article 3 of the Convention on account of the ineffective investigation of the applicant's complaint of ill-treatment whilst in custody. It follows that the Government's objection concerning non-exhaustion (see paragraph 4 2 above ) must be dismissed. 62. Having regard to its finding under Article 3, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in respect of the effectiveness of the investigation. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 63. In addition, the applicant complained that his arrest on 18 November 2002 had been unlawful, that the court hearing concerning charges of insubordination towards the police officers had been unfair and the resulting conviction arbitrary, and that he had lacked effective domestic remedies in respect of these complaints. He relied on Articles 5, 6 § 1, 7 and 13 of the Convention with respect to these complaints. 64. Having considered the applicant's submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. 65. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. 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 67. The applicant claimed 800,000 euros (EUR) in his name and EUR 150,000 euros in his mother's name in respect of non-pecuniary damage allegedly sustained on account of violations of all the provisions of the Convention invoked in his application. 68. The Government submitted that these claims were exorbitant and unsubstantiated. Moreover, Mrs Dushka had no right to claim any award in her name. They also contended that should the Court make any award in the applicant's name, it should be deposited for the benefit of all his lawful heirs. 69. The Court recalls that it has found violations only of Article 3 of the Convention in respect of the applicant's rights. Ruling on an equitable basis, it awards the applicant EUR 1 8 ,000 in respect of non-pecuniary damage, to be paid to the applicant's estate. B. Costs and expenses 70. The applicant also claimed UAH 436 in local transportation costs, UAH 2,781 for his and his mother's medical costs; UAH 6,900 for his and his mother's spa treatment costs; and UAH 1, 528.54 in postal and copying expenses. He provided relevant receipts for medical, copying and postal expenses. 71. The Government submitted that these claims were without merit. 72. 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 150 covering costs for postal and copying expenses and dismisses the remainder of the claims. C. Default interest 73. 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 such practice, especially given the applicant’s vulnerable age, qualified as inhuman and degrading treatment, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. In particular the fact that the confession had been made in a setting lacking such procedural guarantees as the presence of a lawyer, and had then been retracted upon release, pointed to the conclusion that it might not have been given freely. |
7 | Deprivation of liberty and challenging the lawfulness of detention | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic Law 24. The relevant provisions of Act no. LXXX of 2007 on Asylum (“the Asylum Act”) are outlined in the case of Ilias and Ahmed (cited above, §§ 41 and 45). For the purposes of the Asylum Act, persons deserving special treatment include vulnerable persons, in particular minors and pregnant women, who have been found to have special needs after an individual evaluation (section 2k)). According to section 4 of the Act, the best interests and rights of the child shall be a primary consideration when implementing the provisions. Moreover, provisions of the Asylum Act must be applied to persons requiring special treatment with due consideration of the specific needs arising from their situation (section 4(3)). When a crisis situation caused by mass immigration is declared, section 80/J of the Asylum Act, as amended on 28 March 2017, applies and provides as follows: “(1) Asylum applications can be submitted in person to the asylum authority, only in the transit zone... ... (4) In the proceedings the person seeking recognition is not entitled to the entitlements set forth in subsections a) and c) of section 5(1). (5) For the time until a decision against which no further remedy lies or an order on a transfer under the Dublin procedure becomes enforceable, the territory of the transit zone shall be designated by the asylum authority as place of residence. Persons seeking recognition may leave the territory of the transit zone through the exit gate. ...” The provisions of the Asylum Act regulating border procedure, including section 71/A, which limits border procedure and stay in the transit zone to four weeks, do not apply. If a person seeking recognition submits another asylum application following the adoption of a final decision rejecting or terminating his or her earlier application, he or she is not entitled to care, assistance and accommodation (section 80/K(11)). 25. All asylum applications submitted in the transit zones are processed either in an accelerated or standard procedure, depending on the circumstances of each case. Under the standard procedure, a decision on an asylum application must be taken by the IAO within sixty days; if the accelerated procedure is applied or if an application is to be declared inadmissible, the IAO must take a decision within fifteen days. Unless refugee status was granted, the decision of the IAO can be appealed against to a court. If the initial decision was taken in the standard asylum procedure, the court has sixty days to decide the appeal; if an appeal was lodged against a decision taken in the accelerated procedure, or in the event that the asylum application was rejected as inadmissible, the court decision must be taken within eight days. European Union Law and practice 26. The relevant provisions of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (“the Asylum Procedures Directive”) are outlined in the case of Ilias and Ahmed (cited above, §§ 47-55). 27. The relevant provisions of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (“the Reception Conditions Directive”) provide as follows: CHAPTER II GENERAL PROVISIONS ON RECEPTION CONDITIONS Article 8 Detention “1. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; (c) in order to decide, in the context of a procedure, on the applicant ’ s right to enter the territory; (d) when he or she is detained subject to a return procedure under Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (9), in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision; (e) when protection of national security or public order so requires; (f) in accordance with Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third ‑ country national or a stateless person (10). The grounds for detention shall be laid down in national law. ...” Article 11 Detention of vulnerable persons and of applicants with special reception needs “1. The health, including mental health, of applicants in detention who are vulnerable persons shall be of primary concern to national authorities. Where vulnerable persons are detained, Member States shall ensure regular monitoring and adequate support taking into account their particular situation, including their health. 2. Minors shall be detained only as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. Such detention shall be for the shortest period of time and all efforts shall be made to release the detained minors and place them in accommodation suitable for minors. The minor ’ s best interests, as prescribed in Article 23(2), shall be a primary consideration for Member States. Where minors are detained, they shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age. ... 4. Detained families shall be provided with separate accommodation guaranteeing adequate privacy. ... 6. In duly justified cases and for a reasonable period that shall be as short as possible Member States may derogate from the third subparagraph of paragraph 2, paragraph 4 and the first subparagraph of paragraph 5, when the applicant is detained at a border post or in a transit zone, with the exception of the cases referred to in Article 43 of Directive 2013/32/EU.” Article 17 General rules on material reception conditions and health care “1. Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection. 2. Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health. Member States shall ensure that that standard of living is met in the specific situation of vulnerable persons, in accordance with Article 21, as well as in relation to the situation of persons who are in detention. 3. Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. 4. Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time... .” Article 19 Health care “1. Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders. 2. Member States shall provide necessary medical or other assistance to applicants who have special reception needs, including appropriate mental health care where needed.” CHAPTER III REDUCTION OR WITHDRAWAL OF MATERIAL RECEPTION CONDITIONS Article 20 Reduction or withdrawal of material reception conditions “1. Member States may reduce or, in exceptional and duly justified cases, withdraw material reception conditions where an applicant: ... (c) has lodged a subsequent application as defined in Article 2(q) of Directive 2013/32/EU. ... 5. Decisions for reduction or withdrawal of material reception conditions or sanctions referred to in paragraphs 1, 2, 3 and 4 of this Article shall be taken individually, objectively and impartially and reasons shall be given. Decisions shall be based on the particular situation of the person concerned, especially with regard to persons covered by Article 21, taking into account the principle of proportionality. Member States shall under all circumstances ensure access to health care in accordance with Article 19 and shall ensure a dignified standard of living for all applicants. 6. Member States shall ensure that material reception conditions are not withdrawn or reduced before a decision is taken in accordance with paragraph 5.” CHAPTER IV PROVISIONS FOR VULNERABLE PERSONS Article 21 General principle “Member States shall take into account the specific situation of vulnerable persons such as minors ... pregnant women ... victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation, in the national law implementing this Directive.” Article 22 Assessment of the special reception needs of vulnerable persons “1. In order to effectively implement Article 21, Member States shall assess whether the applicant is an applicant with special reception needs. Member States shall also indicate the nature of such needs. That assessment shall be initiated within a reasonable period of time after an application for international protection is made and may be integrated into existing national procedures. Member States shall ensure that those special reception needs are also addressed, in accordance with the provisions of this Directive, if they become apparent at a later stage in the asylum procedure. Member States shall ensure that the support provided to applicants with special reception needs in accordance with this Directive takes into account their special reception needs throughout the duration of the asylum procedure and shall provide for appropriate monitoring of their situation. 2. The assessment referred to in paragraph 1 need not take the form of an administrative procedure. ...” 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 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 referred to in Article 18(1)(a) and (b) and to open-air activities. 4. Member States shall ensure access to rehabilitation services for minors who have been victims of any form of abuse, neglect, exploitation, torture or cruel, inhuman and degrading treatment, or who have suffered from armed conflicts, and ensure that appropriate mental health care is developed and qualified counselling is provided when needed. ...” Article 25 Victims of torture and violence “1. Member States shall ensure that persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment for the damage caused by such acts, in particular access to appropriate medical and psychological treatment or care. ...” 28. In its judgment of 14 May 2020 in the case of FMS and Others v. Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság (C-924/19 PPU and C-925/19 PPU) the Court of Justice of the European Union ruled inter alia that the conditions, in which asylum-seekers that had arrived in Hungary via Serbia had been kept in the Röszke transit zone, amounted to a deprivation of liberty: “Directives 2008/115 and 2013/33 must be interpreted as meaning that the obligation imposed on a third-country national to remain permanently in a transit zone the perimeter of which is restricted and closed, within which that national ’ s movements are limited and monitored, and which he or she cannot legally leave voluntarily, in any direction whatsoever, appears to be a deprivation of liberty, characterised by ‘ detention ’ within the meaning of those directives. ... Article 43(1) of Directive 2013/32 gives Member States the possibility to provide, at their borders or in their transit zones, for specific procedures in order to decide on the admissibility, under Article 33 of that directive, of an application for international protection made at such locations or on the substance of that application in one of the cases provided for in Article 31(8) of that directive, provided that those procedures comply with the basic principles and fundamental guarantees set out in Chapter II of that directive. Under Article 43(2) of Directive 2013/32, those specific procedures must be carried out within a reasonable time, it being understood that if a decision rejecting the application for international protection has not been taken within a period of four weeks, the Member State concerned must grant the applicant entry to its territory and the application must be dealt with after that four-week period in accordance with the normal procedure. ... Article 43 of Directive 2013/32 must be interpreted as not authorising the detention of an applicant for international protection in a transit zone for a period of more than four weeks.” International law 29. Article 22 of the Convention on the Rights of the Child of 20 November 1989 (ratified by Hungary on 7 October 1991) reads as follows: Article 22 “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co ‑ operation in any efforts by the United Nations and other competent intergovernmental organizations or nongovernmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” Reports of visits by international bodies 30. The Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“CPT”) from 20 to 26 October 2017 contains the following passages: “...according to the information provided to the delegation by staff, the average length of stay in the transit zone was some 30 days. ... The CPT notes the efforts made by the Hungarian authorities to provide decent material conditions for the accommodation of foreign nationals in the transit zones and to maintain the premises in a good state of repair and hygiene. The accommodation containers measured 13m² and were usually equipped with two bunk ‑ beds and a bed (fitted with clean mattresses, pillows and bedding) and five lockers. The containers had good access to natural light and artificial lighting, as well as to electric heating. In addition to the accommodation containers, in each caged section, there were containers which served as an office for social workers, a dining room (equipped with chairs, tables and a washbasin, as well as with a fridge, an electric kettle and a microwave oven), a laundry room (with a washing machine and a tumble dryer) and separate communal sanitary facilities for men and women (with washbasins, toilets and showers). ... T he overall design of the transit zones is far too carceral – rolls of razor blade wire were omnipresent, as were high wire-mesh fences which sometimes ran in several lines. ... Such an environment cannot be considered adequate for the accommodation of asylum-seekers, even less so where families and children are among them. ... In addition, some complaints were heard in both transit zones that, during the summer, the containers had often become very hot as they had neither been properly insulated nor equipped with air-conditioning. As regards activities, it is positive that all foreign nationals were able to move freely within their section and associate with other foreign nationals and had unrestricted access to an adjacent outdoor yard and an air-conditioned communal activity room (equipped with tables, chairs, a television set, board games, playing cards and a table tennis table, as well as some books and toys for children) and a prayer room. In the middle of each accommodation section, there was a gravel outdoor yard equipped with tables, chairs/benches and parasols, and, in several of these yards, foreign nationals could play basketball and volleyball. ... Further, apart from the cloth parasols, the yards had no proper shelter against inclement weather. In both transit zones, some organised activities were offered to adult foreign nationals (such as group discussions, Hungarian language classes, board games/chess). However, many complaints were received from the foreign nationals, in particular those who had been held there for longer periods, about a lack of activities. Efforts were being made in both transit zones to provide children with organised activities. School classes (basic English, Hungarian, mathematics, “cultural matters”) were organised every working day (9 a.m. to 12 noon) by teachers attending from the outside community and there were some leisure activities (2 to 4 p.m.), mostly organised by various NGOs. It is praiseworthy that, at Röszke, the outdoor yards of most accommodation sections for families with children comprised a playground for children (with slides, swings and a sandbox). ... ... If, exceptionally, minors are held with their parents in a transit zone, their stay should be for the shortest possible period of time. ... The living conditions in both transit zones are generally acceptable for holding foreign nationals for a limited period of time (i.e. up to several weeks). However, they are not adequate for holding foreign nationals for prolonged periods, in particular families with children. ... As regards the specific health-care needs of children, the CPT welcomes the fact that a paediatrician attended both transit zones twice per week. That said, it is regrettable that no immunisation history was usually taken with regard to whether or not newly ‑ arrived children had been vaccinated, nor were any immunisations such as measles, chicken pox, mumps or rubella offered. In this regard, the Committee wishes to recall that the presence of children in transit zones increases the risk of transmission of contagious diseases common in children. Steps should be taken to review the provision of health care for children in both transit zones, in the light of the preceding remarks. In both transit zones, the health-care staff included a doctor who was present on a rota basis on workdays, and a pool of part-time nurses (feldshers), two of whom were present around the clock, seven days a week. In addition, a military doctor was present for two hours per day seven days a week in both transit zones; he mainly carried out age assessments and provided emergency treatment. A paediatrician visited both of the transit zones twice a week. ... In both transit zones, the delegation was informed that foreign nationals in need of specialist care were usually transferred to a local hospital (including, if necessary, for psychiatric and psychological consultations) and that a psychologist from the Hungarian Red Cross or a religious organisation occasionally carried out visits (focusing mainly on unaccompanied minors). Notwithstanding that, the provision of psychological and psychiatric care appeared to be insufficient. ... During the end-of-visit talks, the Hungarian authorities informed the delegation that steps were being taken to recruit a psychologist on a part-time basis in each transit zone. ... The CPT acknowledges the efforts made by the Hungarian authorities to facilitate in both transit zones foreign nationals ’ contact with the outside world. ...foreign nationals were allowed to keep their mobile phones. In addition, a Wifi Internet connection had been installed in both transit zones, in order to allow foreign nationals to communicate with relatives and friends outside Hungary free-of-charge, including through Voice-over-Internet-Protocol (VoIP) calls. However, the delegation received many complaints from foreign nationals (especially at Tompa) about the weakness of the Wifi signal and consequent frequent unavailability and/or disruption of communications. ... In principle, foreign nationals could send/receive letters without any restrictions and were allowed to receive visits every day. However, given their situation, they were not usually in a position to make use of these possibilities. ...” 31. The report on the fact-finding mission of June 2017 of the Special Representative of the Secretary General of the Council of Europe on migration and refugees, Ambassador Tomáš Boček, concerning the Rӧszke transit zone (SG/Inf(2017)33) is summarised in the judgment of Ilias and Ahmed (cited above, § 67). As regards the conditions in the zone, the following observations are also relevant: “2.2. Conditions ... There was razor blade wire on the roofs of the containers. In each section there was a small common courtyard, with a small playground for children. The persons who stayed in the section could get out only to visit the doctor or to have their interviews with the asylum authorities. Whenever they had to move outside the section, they were escorted by the guards of the transit zone. We were informed by the authorities that the guards are not equipped with weapons but only handcuffs. ... The food was distributed by social workers three times per day in plastic bags. One hot meal per day was provided to asylum-seekers, including fruit, while two snacks and extra fruit were offered to children. Some unaccompanied children with whom we met complained that the food they received was not sufficient. We saw the Hungarian Charity Council providing food supplies in the transit zones. ... Both transit zones had a doctor ’ s room located in a separate container, where asylum-seekers receive basic medical care. In the family sections, in addition to a small playground, there was a container where children could play with each other and engage in some basic leisure activities, such as drawing. However, there are no educational programmes, language learning programmes or curricula adapted to the particular needs and age of children in either transit zone and children cannot attend local schools.” THE LAW PRELIMINARY ISSUE 32. The Court notes that at the time when notice of the application was given to the Government, the “Subject matter of the case” provided as follows: “The application concerns the confinement, in conditions which are allegedly inhuman, of an Iranian-Afghan family (the Iranian applicant, his Afghan wife who was six months pregnant at the material time, and three minor children of Afghan nationality) to the Röszke transit zone at the border of Hungary and Serbia since 19 April 2017, pending the examination of their asylum request.” It further notes that the questions to the parties were formulated in the singular (“applicant”) owing to a clerical error. 33. In their observations, the Government raised this issue and argued that, although the application had been lodged by five applicants, only the first applicant ’ s complaints had been communicated to them. They therefore focused their observations on his case and covered the situation of the family only to the extent that it was relevant to his complaints. The applicants, in their reply, maintained that all five of them were the applicants in the present case, which was clear from the “Subject matter of the case”, as well as from the application form and the authority forms which they had forwarded to the Court in August 2017. 34. The Court notes that when the applicants lodged their application with the Court, they submitted a single application form with the first page of the form filled in only with respect to the first applicant. By contrast, in other parts of the application form, continuous reference was made to “applicants” in the plural, including each family member ’ s dates and places of birth and facts/complaints relevant to each of them. Furthermore, the “Subject matter of the case”, which was forwarded to the parties together with the above-mentioned questions and the application form, referred to the application as concerning “the confinement ... of an Iranian-Afghan family”. The Court also notes that the two Rule 39 requests submitted in the present case and the corresponding decisions indicating interim measures to the Government (see paragraphs 102 and 104 below) were made in respect of the whole family (five applicants). 35. While the Court regrets the clerical error on its part as regards the formulation of the questions to the parties, it considers that all the references to the applicants as a family of five in documents forwarded to the Government (see paragraph 34 above) made it sufficiently evident that the application was lodged by all five applicants and that it was communicated to the parties as such. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 36. The applicants complained that the conditions of their confinement in the Röszke transit zone had been incompatible with the guarantees of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” AdmissibilityThe parties ’ submissions The parties ’ submissions The parties ’ submissions 37. The Government argued that any discomfort allegedly suffered by the applicants in the transit zone did not attain the minimum level of severity prompting the applicability of Article 3 of the Convention. As regards the first applicant, they submitted that he had not been entitled to material conditions and that the arrangements in place in the transit zone had satisfied his basic needs. They invited the Court to declare this complaint inadmissible as incompatible ratione materiae with the Convention provisions or as manifestly ill-founded. 38. The applicants maintained that the reception conditions in the transit zone had amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. The Court ’ s assessment 39. The Court considers that the applicants ’ complaint under Article 3 of the Convention concerning their living conditions in the transit zone raises complex issues of law and fact, the determination of which requires an examination of the merits. 40. It follows that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions (a) The applicants 41. In the applicants ’ view, the substandard conditions of detention in the transit zone (as described in paragraphs 10 - 20 above) – given their specific circumstances as an asylum-seeking family with three minor children and a pregnant woman with serious health issues undergoing a protracted period of detention without a time-limit – had amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. They relied on the Court ’ s case-law regarding administrative detention of migrant children, emphasising children ’ s extreme vulnerability and their specific needs related to their age, lack of independence and status. 42. As regards the first applicant, they further submitted that he had been denied reception conditions automatically, without a duly reasoned decision being delivered by the IAO or judicial remedies, in violation of the Reception Conditions Directive (see paragraph 27 above). He had been wholly dependent on the support of the State, which had therefore had an obligation to provide for basic needs, including food, and should not have placed the burden on him or the charities, leaving him totally deprived of food during his stay in the transit zone. He had been forced to take food from his family, beg others or search for leftovers in dustbins in order to survive, while the authorities had remained indifferent and had, moreover, failed to comply with the Court ’ s interim measure (see paragraph 104 below). (b) The Government 43. The Government submitted that asylum-seekers in the transit zones were able to have their most basic needs met, in terms of food, hygiene and shelter, and that nobody was left in a state of the most extreme poverty or a situation of serious deprivation or want. The applicants had only been accommodated in the transit zone for a short period of time, while the authorities had acted with appropriate speed and due diligence, deciding whether the applicants should be granted leave to enter Hungary. 44. Moreover, they submitted that the applicants ’ vulnerable status had not called for any special treatment which could not be provided to them in the transit zone: material reception conditions were properly adapted to pregnant women and families with minor children. In particular, the applicant mother had been provided with adequate medical care, including prenatal medical care, of a quality at least equal to that available to Hungarian nationals within the Hungarian healthcare system. The children had been generally of good health and had been able to access (specialist) medical services whenever required. Even if the whole range of social services aimed at long-term integration, such as formal schooling for children, had not been fully provided, in their opinion this should not be deemed contrary to the standards of humane treatment. 45. As regards the first applicant, the Government maintained that the asylum authorities had been processing his third asylum application and that he had not been entitled to receive material reception conditions (see paragraph 27 above). Regardless of that fact, he had been assigned accommodation in the transit zone together with his family. Although he had not been provided with free food, he had not been left starving. His family members had been distributed a sufficient amount of long-life food which they could share with him. He could buy food with the assistance of social workers, which he had allegedly done several times. Moreover, charity organisations in the zone had regularly distributed food, which the applicant had refused to accept several times, stating that the family had sufficient supplies. He had also gone on hunger strike, so the resulting starvation and weight loss were not attributable to the Hungarian authorities. Third-party intervener 46. The UNHCR addressed the domestic legislative framework and practice applicable to the treatment of asylum-seekers with specific needs held in the transit zone in Hungary and provided an interpretation of the relevant principles regarding the reception of asylum-seekers. It noted that asylum-seekers in the zone did not receive psychological and psychiatric treatment by qualified practitioners. At the relevant time, no maternity nurse had visited the transit zone, although this service was now provided in the zone. 47. The UNHCR submitted that subsequent/repeat asylum applicants held in the transit zone were allowed to receive food assistance in the form of cold food items (without fruits and vegetables) from authorised charity organisations, although such assistance was not delivered at all times or in every case. The Court ’ s assessment (a) General principles 48. According to the Court ’ s well-established 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 that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. With regard to the confinement and living conditions of asylum-seekers, the Court summarised the relevant general principles in the case of Khlaifia and Others v. Italy ( [GC], no. 16483/12, §§ 158-69, 15 December 2016), and there is no need to repeat them here. 49. It should, however, be noted that the confinement of minors raises particular issues in that regard, since children, whether accompanied or not, are considered extremely vulnerable and have specific needs related in particular to their age and lack of independence, but also to their asylum ‑ seeker status (see Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012). Article 22 § 1 of the 1989 Convention on the Rights of the Child (1577 UNTS 3) encourages States to take appropriate measures to ensure that children seeking refugee status, whether or not accompanied by their parents or others, receive appropriate protection and humanitarian assistance (ibid). Likewise, the European Union directives regulating the detention of migrants adopt the position that minors, whether or not they are accompanied, constitute a vulnerable category requiring the special attention of the authorities (see paragraph 27 above). In recent years, the Court has in several cases examined whether or not the conditions in which accompanied minors had been kept in migrant detention centres were in compliance with Article 3 (see S.F. and Others v. Bulgaria, no. 8138/16, §§ 80-83, 7 December 2017, and the cases referred to therein). It has found a violation of Article 3 in particular on account of a combination of three factors: the child ’ s young age, the length of the detention and the unsuitability of the premises for the accommodation of children (see A.B. and Others v. France, no. 11593/12, § 109, 12 July 2016). 50. Finally, the Court reiterates that Article 3 cannot be interpreted as entailing any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey, no. 53566/99, § 85, 26 April 2005, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 249, ECHR 2011). The Court nevertheless reiterates that State responsibility under Article 3 could arise for “treatment” where an applicant, in circumstances wholly dependent on State support, found him or herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity (see M.S.S. v. Belgium and Greece, cited above, §§ 253, and Budina v. Russia (dec.), no. 45603/05, 18 June 2009). (b) Application to the present case 51. The Court has already analysed – in the case of Ilias and Ahmed ([GC], no. 47287/15, §§ 186-94, 21 November 2019) – the living conditions experienced by applicants as adult asylum-seekers in the Röszke transit zone. In that case, the Court – noting, in particular, the satisfactory material conditions in the zone, the relatively short length of the applicants ’ stay there (23 days), and the possibility for human contact with other asylum ‑ seekers, UNHCR representatives, NGOs and a lawyer – concluded that the conditions in which the applicants had spent twenty-three days in the Röszke transit zone did not reach the Article 3 threshold. 52. The Court considers that the living conditions in the transit zone, in terms of accommodation, hygiene and access to food and medical care, were generally acceptable for holding asylum-seekers for a limited period of time, as confirmed by the CPT in its 2017 Report (see paragraph 30 above). However, it finds that, unlike in the case of Ilias and Ahmed (cited above), who were both adult asylum-seekers whose basic needs were provided for by the Hungarian authorities, the applicants ’ situation was characterised by the first applicant ’ s repeat asylum-seeker status, the applicant children ’ s young age and the applicant mother ’ s pregnancy and serious health condition (compare and contrast Ilias and Ahmed, cited above, § 192). It further notes that the applicants ’ complaint as regards the living conditions experienced by them in the Röszke transit zone between 19 April and 15 August 2017 is twofold. The applicant children and the applicant mother complained that the conditions of their confinement had been inadequate in view of their vulnerabilities. The first applicant complained, in particular, that he had been deprived of food in the zone. Given the differences in the arguments advanced by the applicants, the Court finds it appropriate to examine their complaints separately. (i) The first applicant 53. As regards the first applicant, the Court notes that, like the applicant in M.S.S. v. Belgium and Greece (cited above), the applicant in the present case was at the material time an asylum-seeker (compare and contrast Hunde, cited above, § 55). It observes that the situation in which he found himself was particularly serious. Even though he had a place to live and did not report any difficulties in accessing medical care, he allegedly spent almost four months living in a state of the most extreme poverty, unable to cater for one of his most basic needs – food (compare M.S.S. v. Belgium and Greece, cited above, § 254). The case file does not disclose exactly how often and what food the first applicant could access in the Röszke transit zone. It is however undisputed that the Hungarian authorities refused to provide him with free meals throughout his stay in the zone (see paragraph 24 above). 54. The Court observes that under the Reception Conditions Directive the authorities are in principle required to ensure that material reception conditions are provided to asylum-seekers (see paragraph 27 above). It takes note of the fact that at the relevant time the Hungarian authorities were processing the applicant ’ s third asylum application (see paragraph 6 above) and considered him to be a repeat asylum-seeker (see paragraphs 21 and 24 above). In this connection, the Court notes that Hungary was in principle allowed to decide to reduce or even withdraw material reception conditions from the first applicant as a repeat asylum ‑ seeker (Article 20(1)(c) of the Reception Conditions Directive, see paragraph 27 above). However, any such decision should in view of the obligations incumbent on the Hungarian authorities under the Directive have contained reasons for the withdrawal or reduction and should have taken into account the principle of proportionality (Article 20(5)). The Court was not informed of any such decision of the IAO concerning the withdrawal or reduction of material reception conditions, in particular food, in respect of the first applicant. 55. The Court takes note of the Government ’ s statements that (i) his family members had been distributed sufficient amounts of long-life food which they could share with him, (ii) he had been able to buy food with the assistance of social workers in the zone, and (iii) charity organisations had taken care of his essential needs, including food (see paragraph 45 above). The first applicant challenged their arguments, submitting that he had been forced to eat other asylum-seekers ’ leftovers and beg for food, while the other food arrangements mentioned by the Government had been difficult to achieve (see paragraph 42 above). The UNHCR in its third-party submissions confirmed that while repeat asylum applicants held in the transit zone were allowed to receive food assistance in the form of cold food items from certain charity organisations, such assistance was not always delivered (see paragraph 47 above). In this connection, while noting that essential needs of asylum-seekers in the transit zone may in fact be taken care of by NGOs, the Court is concerned by what seems to be a lack of any legal agreements or safeguards between the Government and the organisations allegedly supplying food assistance in the transit zone, which would ensure legal certainty of the current arrangements. Having regard to the general statements of the Government that the first applicant had had sufficient food supplies, without any information on the quality, frequency and manner in which the food had actually been provided to him, and the lack of documentation submitted in support of their arguments that the applicant had not been left starving, the Court considers that the applicant ’ s allegations concerning food availability in the transit zone must be regarded as sufficiently substantiated. 56. Moreover, the Court cannot ignore the fact that the applicant could only leave the transit zone in the direction of Serbia, and would have therefore forfeited the examination of his asylum claim in Hungary (see Ilias and Ahmed, cited above, § 247). It reiterates that while at the Röszke transit zone, he was fully dependent on the Hungarian authorities for his most basic human needs and was under their control (ibid., § 186). 57. Having regard to the above, the Court considers that the Government ’ s arguments (see paragraph 45 above) are unable to change the fact that the domestic authorities did not provide the first applicant with food during his four-months stay in the transit zone without duly assessing his circumstances and giving a reasoned decision in that regard. In short, they failed to have due regard to the state of dependency in which he lived there. The foregoing considerations are sufficient to enable the Court to conclude that, as a result of the failings of the Hungarian authorities in securing his basic subsistence in the transit zone, the first applicant found himself for several months in a situation incompatible with Article 3 of the Convention. There has accordingly been a violation of this provision with respect to the first applicant. (ii) The second applicant and the applicant children 58. The Court observes at the outset that under Chapter IV of the Reception Conditions Directive, the authorities were in principle obliged to take into account the specific situation of minors and pregnant women, both categories considered vulnerable by the Directive, as well as assess and monitor any special reception needs linked to their status throughout the duration of their asylum procedures (see paragraph 27 above). Moreover, minors and pregnant women who had been found to have special needs after an individual evaluation were eligible for preferential treatment under the Asylum Act ((section 2k) of the Act, see paragraph 24 above). The Court cannot substitute its own assessment of the applicants ’ condition under domestic law for that of the national authorities (see Ilias and Ahmed, cited above, § 150). It notes, however, that, in the present case, no individualised assessment of the special needs of the applicant children or the second applicant, all of whom were considered vulnerable under the European Union legislation, seems to have been carried out by the Hungarian authorities. 59. The Court further observes that the applicant children, who were seven months, six years and seven years old respectively, were accompanied by their parents throughout their stay in the Röszke transit zone. It finds, however, that this fact is not capable of exempting the Hungarian State from its duty to protect them and take adequate measures as part of its positive obligations under Article 3 of the Convention (see Muskhadzhiyeva and Others v. Belgium, no. 41442/07, §§ 57-8, 19 January 2010). 60. As regards the physical conditions of the applicants ’ stay in the transit zone, the Court observes that after their arrival on 19 April 2017, the applicants were assigned accommodation together as a family. They initially stayed in the section designated for receiving families only (see paragraph 11 above) and were later, namely on 29 June 2017, moved to the isolation section (see paragraph 13 above). The Court takes note of the fact that fans and awnings were only provided as of August 2017 (see paragraph 11 above). Even though the applicants had unrestricted access to the outdoor yard and an air-conditioned communal activity room (see paragraph 30 above), they were provided with an air-conditioned living container only in the isolation section (see paragraph 13 above). The Court is concerned by the applicants ’ allegation that they were made to suffer the heat in the family section ’ s accommodation container and that there was no proper ventilation (see paragraph 11 above). It reiterates that suffering from heat cannot be underestimated, as such conditions may affect one ’ s well-being and in extreme circumstances affect health (see Aden Ahmed v. Malta, no. 55352/12, § 94, 23 July 2013). Accordingly, this is a factor which cannot be ignored in the overall assessment of the conditions in the transit zone. 61. As regards the suitability of the facilities for children, the Court observes that the applicants ’ living containers in both sections contained basic furniture and childcare equipment. However, the Government did not submit any evidence to disprove the applicants ’ allegation that the beds had not been fit for use by children (see paragraph 11 above, and S.F. and Others v. Bulgaria, cited above, § 88). What is more, while the applicant children had access to facilities designated for playing and were able to participate in certain activities organised specifically for children in the family section, the situation changed once the family was moved to the isolation section – for a period of a month and a half no activities were organised and there was no playground accessible to the applicant children (see paragraph 13 above and Popov, cited above, §§ 95 and 102). The Court notes in this connection that, in the isolation section, the applicants, including the applicant children, had no contact with other asylum-seeking families or NGO representatives in the zone. 62. As regards the provision of medical services, the Court notes that the applicant children and mother received medical (including specialist) treatment on several occasions during their stay in the transit zone (see paragraph 18 above). It does not find it established that the arrangements in place in the zone, such as the system of medical referrals to the local hospital and the transportation arrangement (see paragraph 19 above), were such as to raise an issue under Article 3 of the Convention. As regards the lack of interpretation during the applicant mother ’ s medical examinations (see paragraph 19 above), the Court notes that the possibility for a patient to be treated by staff who speak his or her language is not an established ingredient of the right enshrined in Article 3 of the Convention (see Rooman v. Belgium [GC], no. 18052/11, § 151, 31 January 2019). It further notes that at her hospital visit of 9 August 2017 interpretation was provided at the doctor ’ s request. Although at her other hospital visits an anamnesis could not be collected from her due to the language constraints, the Court does not find any evidence of this language barrier limiting her effective access to treatment that was normally available. What it finds disconcerting, however, is the lack of medical documentation with respect to the youngest applicant child and the applicants ’ undisputed allegation, confirmed also by the CPT report (see paragraph 30 above), that she had not been given the vaccines recommended at her age. It also accepts that outside medical treatment in the presence of (male) police officers, an allegation not disputed by the Government, must have caused a degree of discomfort to the applicants, particularly during the second applicant ’ s gynaecological examinations (see paragraph 19 above; see also Aden Ahmed, cited above, § 95). 63. Of further concern to the Court is the fact that at the material time there was no professional psychological assistance available for traumatised asylum-seekers in the transit zone. It takes note of the applicants ’ argument that the second applicant (the applicant mother) had had mental health problems for a long time because of trauma in Afghanistan and had been receiving help in Serbia, but had not received any psychological or psychiatric treatment in the transit zone. The Government did not explain why, in particular, the applicant mother, whose condition had been brought to the attention of the authorities, was not examined by a psychiatrist. The Court further finds, without having to rely on the medical certificate produced by the applicants (see paragraph 20 above), that the presence of elements resembling a prison environment even in the sections of the Röszke transit zone designated for families (see paragraph 30 above) and the constraints inherent during confinement, which are particularly arduous for a young child, must have caused the applicants ’ children anxiety and psychological disturbance. The situation must have also created degradation of the parental image in the eyes of the children (see, mutatis mutandis, A.B. and Others v. France, § 113, and Popov, § 101, both cited above). For example, the applicants, including the applicant children, were accompanied by guards when moving between the sections even if only for the purpose of medical appointments, and armed police officers if they had to leave the zone (see paragraph 19 above). In addition, they were constantly subjected to security checks (see paragraph 14 above). 64. Lastly, the Court takes note of the duration of the applicants ’ stay; they were held for three months and twenty-seven days at the Röszke transit zone. The CPT in its report raised the issue of families with children in the transit zone, noting that the living conditions there were not adequate for holding them for prolonged periods and that their stay should be for the shortest possible period of time (see paragraph 30 above). The Court is of the view that the above-mentioned conditions, depending on the circumstances of the case, may not attain the threshold of severity required to engage Article 3, where the confinement is of a short duration. It considers that, in the case of a longer period, their repetition and accumulation would necessarily have harmful consequences for those exposed to them (compare and contrast Ilias and Ahmed, cited above, § 193). It reiterates the primary significance of the passage of time for the application of this Article (compare A.B. and Others v. France, cited above, § 114). 65. Accordingly, in view of the applicant children ’ s young age, the applicant mother ’ s pregnancy and health situation and the length of the applicants ’ stay in the transit zone in the conditions set out above, the Court finds that the situation complained of subjected the applicant children and the applicant mother to treatment which exceeded the threshold of severity required to engage Article 3 of the Convention (compare and contrast Ilias and Ahmed, cited above, § 194). There has therefore been a violation of that provision in respect of the applicant children and the applicant mother. ALLEGED VIOLATION OF Article 13 in conjunction with Article 3 of the Convention 66. The applicants alleged that there had been no effective remedy at their disposal to complain about the living conditions in the transit zone. They also claimed that the denial of reception conditions in the first applicant ’ s case had been automatic, without any decision being made in that regard or remedies to challenge the denial. They relied on Article 13 read in conjunction with Article 3 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 67. The Government submitted that the applicants had no arguable claim under Article 3 of the Convention and that their Article 13 complaint should therefore be declared inadmissible ratione materiae. Alternatively, they argued that this complaint was manifestly ill-founded as the applicants had had several remedies available to them in respect of the material conditions in the transit zone; they could, in particular, have lodged a complaint with the asylum authority, a request to be transferred to another pre-entry accommodation facility and a civil-law action for violation of personality rights. 68. The Court has declared admissible the applicants ’ complaint under Article 3 in respect of the conditions of detention and found a violation of that provision (see paragraphs 57 and 65 above). The complaints in question were therefore “arguable” for the purposes of Article 13 of the Convention (see Khlaifia and Others, cited above, §§ 268 ‑ 69) and the complaint under Article 13 of the Convention must thus be declared admissible. 69. Having found a violation of Article 3 of the Convention (see paragraphs 57 and 65 and above), and in view of the fact that the alleged procedural shortcomings have been sufficiently examined under that Article (see paragraphs 54 and 58 above), the Court does not find it necessary to examine the complaint under Article 13 regarding those same alleged shortcomings. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 70. The applicants complained that they had been confined to the transit zone in violation of Article 5 § 1 of the Convention, the relevant parts of which provide as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” AdmissibilityThe parties ’ submissions The parties ’ submissions The parties ’ submissions 71. The Government emphasised that the applicants had entered the zone of their own will and had been free to leave in the direction of Serbia at any time. The restriction of their freedom of movement in the direction of Hungary pending determination of their right to enter the country had been a limitation inherent in the nature of the admission procedure. Their temporary accommodation in the transit zone had not amounted to deprivation of liberty within the meaning of Article 5 of the Convention. 72. The applicants submitted that their placement in the transit zone had amounted to a de facto deprivation of liberty for which no detention order had been issued. The fact that they had entered the transit zone of their own will did not mean that they had consented to the confinement. Had they left the zone in the direction of Serbia, this could have been used against their asylum claim and could have amounted to refoulement. Third-party intervener 73. The UNHCR provided, as a third-party intervener, an interpretation of the relevant principles of international and European refugee and human rights law regarding the detention of asylum-seekers. The Court ’ s assessment 74. The Court reiterates the factors it has taken into consideration when determining the distinction between a restriction on liberty of movement and deprivation of liberty in the context of confinement of foreigners in transit zones and reception centres for the identification and registration of migrants: (i) the applicants ’ individual situation and their choices, (ii) the applicable legal regime of the respective country and its purpose, (iii) the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events, and (iv) the nature and degree of the actual restrictions imposed on or experienced by the applicants (see Ilias and Ahmed, cited above, §§ 217-18, and Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, § 138, 21 November 2019). It further reiterates that in the case of Ilias and Ahmed (cited above, § 249), the Grand Chamber examined a comparable complaint and held that the applicants ’ stay of twenty-three days in the Röszke transit zone did not constitute a de facto deprivation of liberty and, consequently, that Article 5 was not applicable. The Court must now examine whether the application of the factors outlined above to the applicants ’ specific situation warrants a different conclusion in the present case. (a) The applicants ’ individual situation and choices 75. As regards the changes in the applicable legal regime related to the fact that the applicants could only submit an application for asylum while in the transit zone (see paragraph 24 above), the Court considers that the fact remains that the applicants entered the Röszke transit zone of their own initiative, with the aim of seeking asylum in Hungary. Having regard to the known facts about the applicants and their respective journeys, it notes in particular that they had waited in Serbia for several months before crossing the border of their own free will and not because of a direct and immediate threat to their life or health in that country. It is also clear that, in any event, the Hungarian authorities were entitled to carry out the necessary verifications and examine their claims before deciding whether or not to admit them (see Ilias and Ahmed, §§ 222-23, and Z.A. and Others v. Russia, §§ 140-42, both cited above). (b) The applicable legal regime, its purpose and the relevant duration in the light of that purpose and the procedural protection enjoyed 76. The purpose of the domestic legal regime applicable to the Röszke transit zone was to put in place a waiting area while the authorities decided whether to formally admit the asylum-seekers to Hungary (see Ilias and Ahmed, cited above, § 224). The applicants remained in the transit zone essentially because they were awaiting the outcome of their asylum proceedings (see paragraph 23 above). 77. The Court reiterates that the right of States to control the entry of foreigners into their territory necessarily implies that admission authorisation may be conditional on compliance with relevant requirements. Therefore, absent other significant factors, the situation of an individual applying for entry and waiting for a short period for the verification of his or her right to enter cannot be described as deprivation of liberty imputable to the State, since in such cases the State authorities have undertaken vis ‑ à ‑ vis the individual no other steps than reacting to his or her wish to enter by carrying out the necessary verifications (see Ilias and Ahmed, § 225, and Z.A. and Others v. Russia, § 144, both cited above). 78. The Court further reiterates that, in principle, as long as the applicant ’ s stay in the transit zone does not exceed significantly the time needed for the examination of an asylum request and there are no exceptional circumstances, the duration in itself should not affect the Court ’ s analysis on the applicability of Article 5 in a decisive manner. That is particularly so where the individuals, while waiting for the processing of their asylum claims, benefitted from procedural rights and safeguards against excessive waiting periods. The presence of domestic legal regulation limiting the length of stay in the transit zone is of significant importance in this regard (see Ilias and Ahmed, § 227, and Z.A. and Others v. Russia, § 147, both cited above). 79. The Court observes that unlike the situation in the case of Ilias and Ahmed (cited above, § 226), the provision limiting the maximum duration of an asylum-seeker ’ s stay in the transit zone to four weeks did not apply in the present case (see paragraph 24 above) and that the Government were unable to point to any other domestic provision fixing the maximum duration of the applicants ’ stay in the transit zone. The Court notes, moreover, that the time-limits for processing asylum claims laid down in the asylum procedure (sixty days for the IAO to take a decision on an asylum application) were not respected in the present case (see paragraph 25 above). 80. Furthermore, the Court observes that the processing of the applicants ’ asylum claims was anything but speedy, as the applicants spent almost four months in the transit zone awaiting the outcome of their asylum proceedings (see paragraphs 22 and 23 above, and compare and contrast Ilias and Ahmed, cited above, § 228). It takes note, in particular, of the delays of more than two months related to the provision of an expert opinion on the first and second applicants ’ marriage certificate and the DNA testing, which was only ordered two months after the applicants had been placed in the transit zone (see paragraph 22 above). Against this background, even though the IAO was entitled to take measures aimed at verifying the existence of family ties between the applicants, the Court cannot accept that the applicants ’ situation was not influenced by any inaction or lack of diligence on the part of the Hungarian authorities. The Court would add that the case file contains no indication that the applicants themselves, who were last interviewed on 8 June 2017, failed to comply with the legal regulations in place or did not act in good faith at any time during their stay in the transit zone by, for instance, complicating the examination of their asylum cases (see Z.A. and Others v. Russia, cited above, § 149). (c) The nature and degree of the actual restrictions imposed on or experienced by the applicants 81. While the applicants were not permitted to leave the Röszke transit zone in the direction of the remaining territory of Hungary, they could have left the transit zone in the direction of Serbia at any time (see paragraph 24 above). In this connection, the Court reiterates that the risk of the applicants ’ forfeiting the examination of their asylum claims in Hungary and their fears about insufficient access to asylum procedures in Serbia (see paragraph 72 above) did not render the possibility of them leaving the transit zone in the direction of Serbia merely theoretical. Therefore, it did not have the effect of making the applicants ’ stay in the transit zone involuntary from the standpoint of Article 5 and, consequently, could not have triggered, of itself, the applicability of that provision (see Ilias and Ahmed, cited above, § 248). 82. As regards the conditions in which the applicants lived in the transit zone, the Court observes that, overall, as in the case of Ilias and Ahmed (cited above, § 232), the size of the applicants ’ section in the transit zone and the manner in which it was controlled were such that the applicants ’ freedom of movement was severely restricted, in a manner similar to that characteristic of a certain type of light-regime detention facility. In this connection, the Court cannot ignore the fact that the applicants spent a month and a half in the isolation section of the transit zone, under conditions which were, due to its nature, even more restrictive (see paragraph 13 above). The Court also refers to its finding of a violation of Article 3 of the Convention with respect to these conditions (see paragraphs 57 and 65 above). (d) Conclusion as regards the applicability of Article 5 83. Having regard to the above considerations, in particular to the lack of any domestic legal provisions fixing the maximum duration of the applicants ’ stay, the excessive duration of that stay and the considerable delays in the domestic examination of the applicants ’ asylum claims, as well as the conditions in which the applicants were held during the relevant period, the Court finds that, in the circumstances of the present case, the applicants ’ stay in the transit zone amounted to a de facto deprivation of liberty (compare and contrast Ilias and Ahmed, cited above, § 249). Article 5 § 1 is therefore applicable. 84. It follows that this part of the application is not incompatible ratione materiae with the provisions of the Convention. Moreover, it is not manifestly ill-founded within the meaning of the same provision. Nor is it inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions 85. The applicants alleged that the impugned measure had lacked any basis in domestic law and that there had been no decision on deprivation of liberty issued in their case. They further submitted that Hungary, a Member State of the European Union, was under an obligation to act in accordance with Article 8 of Reception Conditions Directive (see paragraph 27 above) according to which Member States should not hold a person in detention for the sole reason that he or she was an asylum-seeker. The applicants stressed that detention should be subject to individual assessment and had to be necessary and proportionate. The IAO ’ s ruling on their placement in the transit zone had lacked any assessment of the best interests of the children and had not verified whether any non-coercive alternatives to detention could be applied. 86. The Government submitted that, even if Article 5 of the Convention was applicable to the case, the deprivation of liberty had had legal basis in Hungarian law and had been justified under the first limb of Article 5 § 1 (f). In this connection, they relied on section 80/J of the Asylum Act (see paragraph 24 above), which provided that asylum-seekers were not entitled to a right of entry and stay in the territory of Hungary and that pending determination of their asylum applications they were accommodated in a transit zone. Pending asylum proceedings were therefore the sole condition for the lawfulness of detention in the transit zone, not requiring any judicial assessment or judicial review. The Court ’ s assessment 87. The Court refers to the general principles on Article 5 § 1 (f) of the Convention as summarised in the case of Z.A. and Others v. Russia (cited above, §§ 159-63). It reiterates that any deprivation of liberty must be “in accordance with the procedure prescribed by law” that meets the “quality of law” criteria, as well as be free from arbitrariness. Where deprivation of liberty is concerned, it is essential that the general principle of legal certainty be satisfied and therefore that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Khlaifia and Others, cited above, § 92, with further references). Furthermore, the detention of a person constitutes a major interference with individual freedom and must always be subject to rigorous scrutiny (see, Z.A. and Others v. Russia, cited above, § 161). 88. The Court is fully conscious of the difficulties that member States may face during periods of massive arrivals of asylum-seekers at their borders. Subject to the prohibition of arbitrariness, the lawfulness requirement of that provision may be considered generally satisfied by a domestic legal regime that provides, for example, for no more than the name of the authority competent to order deprivation of liberty in a transit zone, the form of the order, its possible grounds and limits, the maximum duration of the confinement and, as required by Article 5 § 4, the applicable avenue of judicial appeal (ibid, § 162). 89. Turning to the present case, the Court notes that the applicants ’ detention in the transit zone lasted from 19 April to 15 August 2017, that is, three months and twenty-seven days. According to the Government, section 80/J of the Asylum Act provided the legal basis for the measure (see paragraph 24 above). This provision states that asylum applications can only be submitted, with certain exceptions, in the transit zone, and that asylum seekers are required to wait in there until a final decision is taken on their asylum applications. The Court, for its part, cannot identify in the provision in question any reference to the possibility of detention in the transit zone nor any indication of the maximum duration of asylum seekers ’ detention in the zone. Accordingly, it concludes that in the present case there was no strictly defined statutory basis for the applicants ’ detention (see, mutatis mutandis, Z.A. and Others v. Russia, cited above, § 164). 90. The Court further notes that the applicants ’ detention occurred de facto, that is, as a matter of practical arrangement. The Hungarian authorities did not issue any formal decision of legal relevance complete with reasons for the detention, including an individual assessment and consideration of any alternative measures that would have been less coercive than detention for the applicant family (see, mutatis mutandis, A.B. and Others v. France, cited above, §§ 123-24; see also Article 8 of the Reception Conditions Directive in paragraph 27 above). 91. The motives underlying the applicants ’ detention may well be those referred to by the Government in the context of Article 5 § 1 (f) of the Convention. However, the fact remains that the applicants were deprived of their liberty without any formal decision of the authorities and solely by virtue of an overly broad interpretation of a general provision of the law – a procedure which in the Court ’ s view falls short of the requirements enounced in its case-law. 92. It follows that the applicants ’ detention cannot be considered “lawful” for the purposes of Article 5 § 1 of the Convention. There has accordingly been a violation of that provision. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 93. The applicants further complained that the deprivation of their liberty in the transit zone could not be remedied by appropriate judicial review, in breach of Article 5 § 4 of the Convention, which provides: “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.” Admissibility 94. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 95. The applicants submitted that because they had not received a formal decision on their detention, they could not challenge the lawfulness of the measure in any kind of procedure and could not request their release before a judicial body. 96. The Government submitted that there was an effective judicial remedy against the unlawful silence of the asylum authority and arbitrariness of “pre-entry detention” of asylum-seekers in the transit zone under section 20 of the Administrative Procedure Act (see Lokpo and Touré v. Hungary, no. 10816/10, § 13, 20 September 2011). 97. The Court reiterates its above finding that the applicants ’ detention consisted of a de facto measure, not supported by any decision specifically addressing the issue of deprivation of liberty (see paragraph 90 above). Moreover, the administrative remedy suggested by the Government concerned the applicants ’ asylum applications rather than the question of personal liberty. In these circumstances, the Court does not find it established that the applicants could have sought a judicial review of their detention in the transit zone – which itself had not taken the form of a formal decision. 98. The Court must therefore conclude that the applicants did not have at their disposal any proceedings by which the lawfulness of their detention could have been decided speedily by a court. 99. It follows that there has been a violation of Article 5 § 4 of the Convention. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 100. The applicants alleged under Article 34 of the Convention that the authorities had failed to comply with the interim measure indicated by the Court on 19 May 2017. The relevant provision 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.” 101. The Court refers at the outset to the principles set out in its case ‑ law regarding the obligations laid down in Article 34 of the Convention and their relationship to the interim measures provided for by Rule 39 (see, for instance, Paladi v. Moldova [GC], no. 39806/05, §§ 84-92, 10 March 2009). According to those principles, the starting-point for verifying whether a respondent State has complied with an interim measure is the formulation of the interim measure itself (ibid., § 91). 102. Turning to the circumstances of the present case, the Court notes that on 19 May 2017 it decided to apply a first measure under Rule 39 of the Rules of Court in the case, indicating to the Hungarian Government: “...to place the applicants, as soon as possible, in an environment which complies with the requirements of Article 3 of the Convention, taking into account the presence of three minors and a pregnant woman (see especially Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012) and to keep the Court informed of the developments of the applicants ’ situation.” 103. By a letter of 30 May 2017 the applicants informed the Court that they were still detained in the transit zone despite the interim measure. They drew the Court ’ s attention to an unanswered letter sent to the IAO by their legal representative requesting their release. In their letter of 7 June 2017 the Government did not dispute their obligation under Article 34 of the Convention to comply with the interim measure. Instead, they contended that the Court ’ s interim measure did not require the applicants ’ transfer to another reception centre and that it could be complied with within the transit zone. They submitted that the conditions in the zone, where they provided adequate accommodation and care for the applicants and their specific needs, satisfied the requirements of Article 3. In the application form, in which the applicants raised the Article 34 complaint, they maintained that after the Court ’ s Rule 39 decision of 19 May 2017 the conditions of their placement in the transit zone had not improved and, in some ways, had even worsened. 104. The Court notes that on 7 July 2017 the Court decided to apply a second interim measure in the case, reiterating the first Rule 39 measure and, additionally, indicating that the Hungarian Government should “ensure regular meals also for the first applicant and interpretation for the second applicant during her medical check-ups”. 105. In so far as the applicants can be understood as stating that only placement in an open reception centre would have complied with the requirements of Article 3 of the Convention (see paragraph 103 above), the Court observes that the Rule 39 decision of 19 May 2017 did not refer to a specific facility for the applicants ’ accommodation or request that the Government place the applicants in a reception centre outside the transit zone (see paragraph 101 above ). It notes that the applicants ’ allegation that the conditions in the transit zone worsened following the interim measure of 19 May 2017 (see paragraph 103 above) remained largely unsubstantiated. 106. The Court further notes that the applicants ’ complaint under Article 34 of the Convention concerns, in effect, the respondent State ’ s obligations under Article 3 of the Convention. The question whether the Government in fact complied with the interim measure at issue is thus closely related to the examination of the complaints raised by the applicants under the latter Convention provision. 107. Given the nature of the interim measures applied in the present case, the parties ’ submissions and the Court ’ s findings concerning the applicants ’ complaint under Article 3 of the Convention (see paragraphs 57 and 65 above) – the Court takes the view that it has examined the main legal question raised in respect of their situation in the transit zone and that it does not need to give a separate ruling on the complaint under Article 34 of the Convention (see, mutatis mutandis, Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007). 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.” Damage 109. The applicants claimed 15,000 euros (EUR) each in respect of non ‑ pecuniary damage. 110. The Government argued that the claim was excessive. 111. Having regard to the circumstances of the present case and the nature of the violations found, the Court considers it reasonable to award each of the adult applicants (the first and second applicants) the amount of EUR 4,500 and each of the applicant children the amount of EUR 6,500 in respect of non-pecuniary damage. Costs and expenses 112. With respect to the proceedings before the Court, the applicants claimed EUR 18,070 for 121 hours of legal work at the hourly rate of EUR 150 plus EUR 80 in clerical expenses. The lawyer indicated that she had agreed with the applicants that the latter would pay her if they won the case before the Court. 113. The Government submitted that the expenses claimed had not been necessarily incurred and were not reasonable as to quantum, given the number of irrelevant submissions made by the applicants and their similarity to the submissions made in other cases. 114. 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, the Court considers it reasonable to award the sum of EUR 5,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicants. Default interest 115. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found that the applicants’ stay in the transit zone had amounted to a de facto deprivation of liberty. It considered that without any formal decision of the authorities and solely by virtue of an overly broad interpretation of a general provision of the law, the applicants’ detention could not be considered to have been lawful. Accordingly, it concluded that in the present case there had been no strictly defined statutory basis for the applicants’ detention and that there had thus been a violation of Article 5 § 1 (right to liberty and security) of the Convention. In the absence of any formal decision of the authorities and any proceedings by which the lawfulness of the applicant’s detention could have been decided speedily by a court, the Court also held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. Lastly, in view, in particular, of the applicant children’s young age, the applicant mother’s pregnancy and health situation and the length of the applicants’ stay in the conditions in the transit zone, the Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
58 | Adoption | II. RELEVANT LAW AND PRACTICE A. Domestic law 1. The Civil Code 26. The relevant provisions at the material time read as follows: Article 343 “Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twenty-eight years of age.” Article 343-1 “Adoption may also be applied for by any person over twenty-eight years of age. ... ” 2. Family and Social Welfare Code 27. The relevant provisions at the material time read as follows: Article 63 “Children in State care may be adopted either by persons given custody of them by the children's welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt ... Authorisation shall be granted for five years, within nine months of the date of the application, by the president of the council for the relevant département after obtaining the opinion of a [ n ] [ adoption] board. ... ” Article 100-3 “Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.” 3. Decree no. 98-771 of 1 September 1998 establishing the arrangements for appraising applications for authorisation to adopt a child in State care 28. The relevant provisions of the decree read as follows: Article 1 “Any person wishing to obtain the authorisation contemplated in the first paragraph of Article 63 and Article 100-3 of the Family and Social Welfare Code must submit an application to that end to the president of the council for the département in which he or she resides. ... ” Article 4 “Before issuing authorisation, the president of the council for the relevant département must satisfy himself that the conditions in which the applicant is proposing to provide a child with a home meet the needs and interests of an adopted child from a family, child-rearing and psychological perspective. To that end, he shall order inquiries into the applicant's circumstances ...” Article 5 “The decision shall be taken by the president of the council for the relevant département after consulting the adoption board ... ” B. International Conventions 1. Draft European Convention on the Adoption of Children 29. The relevant provisions of this draft Convention, currently being examined by the Committee of Ministers of the Council of Europe, provide inter alia : Article 7 – Conditions for adoption “ 1. The law shall permit a child to be adopted : a. by two persons of different sex THE LAW 32. The applicant alleged that she had suffered discriminatory treatment that had been based on her sexual orientation and had interfered with her right to respect for her private life. She relied on Article 14 of the Convention taken in conjunction with Article 8, 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 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.” I. ADMISSIBILITY A. Submissions of the parties 1. The applicant 33. The applicant stated that adoption by homosexuals fell into three quite distinct categories: first, it might be a single person seeking to adopt, in a member State where adoptions by single persons were permitted (even if only in exceptional cases), in which case any partner the individual might have acquired no parental rights as a result of the adoption (individual adoption); second, one member of a same-sex couple might seek to adopt the child of the other partner, so that both partners had parental rights vis-à-vis the child (second-parent adoption); and lastly, both members of a same-sex couple might seek to jointly adopt a child with no prior connection with either partner, so that both partners simultaneously acquired parental rights vis-à-vis the child (joint adoption). The applicant specified that she had applied for individual adoption, which was the simpler legal option. 34. She emphasised the importance of obtaining authorisation, which, in practice, was a precondition to adopting a child in France or abroad. 35. The applicant did not claim a right to adopt, which – irrespective of the sexual orientation of the prospective adoptive parent – did not exist. Nevertheless, she submitted that Article 14 of the Convention, taken in conjunction with Article 8, was applicable to the present case. Firstly, the opportunity or chance of applying for authorisation to adopt fell within the scope of Article 8 both with regard to “private life”, since it concerned the creation of a new relationship with another individual, and “family life”, since it was an attempt to create a family life with the child being adopted. Secondly, a person's sexual orientation, which was an aspect of their private life, accordingly fell within the scope of Article 8. 2. The Government 36. The Government contended that the application was inadmissible, since the complaint fell outside the scope of Article 8 of the Convention and, consequently, Article 14. In any event, unlike in Fretté ( Fretté v. France, no. 36515/97, § 32, ECHR 2002-I), the refusal to grant the applicant authorisation had not been based, explicitly or implicitly, on the applicant's sexual orientation and could not therefore amount to direct or indirect discrimination based on her homosexuality. 37. The reason for refusing her authorisation had been dictated by the child's interests alone and had been based on two grounds : lack of a paternal referent and the ambivalence of the applicant's partner's commitment to her adoption plans. 38. With regard to the ground relating to the lack of a paternal referent, the Government pointed out that many professionals considered that a model of sexual difference was an important factor in a child's identity and that it was perfectly understandable that the social services of the département should take into consideration the lack of markers enabling a child to construct its identity with reference to a father figure. The Government cited decisions of the domestic courts in support of their submission that any other heterosexual applicant whose immediate circle of family and friends did not include a member of the opposite sex would have had their application refused on the same ground. 39. With regard to the second ground, the Government submitted at the outset that the lack of commitment on the part of the applicant's partner was an established fact. They observed that the applicant continued to deny the relevance of that fact, whereas it was legitimate to have regard to the conduct of a prospective adoptive parent's immediate circle of family and friends where there were plans to bring a child into the home. Irrespective of the lack of legal consequences for the partner, the arrival of a child would change the balance of the receiving couple and the family unit, and an adopted child's previous history made it all the more important to assess the solidity of a couple's approach to any plan to adopt. Accordingly, apart from the fact that R. would necessarily be involved in the child's day-to-day life, her lack of involvement could be seen as a source of insecurity for the child with the risk that the child would find him or herself in competition with the applicant's partner for the applicant's time and affection. In the Government's submission, that ground could not be said to be related to the applicant's sexual orientation, as had been borne out by the decisions of the domestic courts. 40. In the Government's view, the circumstances of the present case were therefore very different from those in Fretté ( cited above) and it should be stressed that the French administrative and judicial authorities had given paramount consideration to what lay in the best interests of the child. Those best interests were central to many international instruments binding on France. There was no right to a child or right to authorisation to adopt one. Adoption was a measure taken for the child's protection and was designed to provide him or her with a family. The sole purpose of the authorisation procedure was to identify from among the many candidates the person who could provide a child with the most suitable home in every respect. Accordingly, the desire for a child must not prevail over the child's interests. B. The Court's assessment 41. The Court, noting that the applicant based her application on Article 14 of the Convention, taken in conjunction with Article 8, reiterates at the outset that the provisions of Article 8 do not guarantee either the right to found a family or the right to adopt ( see Fretté, cited above, § 32). Neither party contests this. The right to respect for “ family life ” does not safeguard the mere desire to found a family; it presupposes the existence of a family ( see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 31), or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father ( see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999 ‑ VI ), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 62), or the relationship that arises from a lawful and genuine adoption ( see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECHR 2004 ‑ V ). 42. Nor is a right to adopt provided for by domestic law or by other international instruments, such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption ( see paragraphs 30-31 above ). 43. The Court has, however, previously held 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, judgment of 16 December 1992, Series A no. 251 ‑ B, p. 33, § 29), the right to “personal development” ( see Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I ) or the right to self-determination as such ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). It encompasses elements such as names ( see Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280 ‑ B, p. 28, § 24), gender identification, sexual orientation and sexual life, which fall within the personal sphere protected by Article 8 ( see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions 1997-I, p. 131, § 36), and the right to respect for both the decisions to have and not to have a child ( see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ ... ). 44. Admittedly, in the instant case the proceedings in question do not concern the adoption of a child as such, but an application for authorisation to adopt one subsequently. The case therefore raises the issue of the procedure for obtaining authorisation to adopt rather than adoption itself. However, the parties do not contest that in practice authorisation is a precondition for adopting a child. 45. It should also be noted that the applicant claimed to have been discriminated against on the ground of her avowed homosexuality, resulting in a violation of the provisions of Article 14 of the Convention taken in conjunction with Article 8. 46. The Court is not therefore called upon to rule whether the right to adopt, having regard, inter alia, to developments in the legislation in Europe and the fact that the Convention is a living instrument which must be interpreted in the light of present-day conditions ( see, in particular, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53), should or should not fall within the ambit of Article 8 of the Convention taken alone. 47. With regard to Article 14, which was relied on in the present case, the Court reiterates that it only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions ( see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003 ‑ VIII ). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention ( see Abdulaziz, Cabales and Balkandali, cited above, § 71; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 22; and Petrovic v. Austria, judgment of 27 March 1998, Reports 1998 ‑ II, § 22 ). 48. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court's case-law ( see 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, § 9; Abdulaziz, Cabales and Balkandali, cited above, § 78; and Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005 ‑ X ). 49. The present case does not concern adoption by a couple or by the same-sex partner of a biological parent, but solely adoption by a single person. Whilst Article 8 of the Convention is silent as to this question, the Court notes that French legislation expressly grants single persons the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly, the Court considers that the facts of this case undoubtedly fall within the ambit of Article 8 of the Convention. Consequently, the State, which has gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – cannot, in the application of that right, take discriminatory measures within the meaning of Article 14 ( see, mutatis mutandis, Case “ relating to certain aspects of the laws on the use of languages in education in Belgium ”, cited above ). 50. The applicant alleged in the present case that, in the exercise of her right under the domestic law, she had been discriminated against on the ground of her sexual orientation. The latter is a concept covered by Article 14 of the Convention ( see Salgueiro da Silva Mouta v. Portugal, no. 33290/96, § 28, ECHR 1999-IX). The Court also points out that in Fretté v. France (cited above), to which the parties expressly referred, the applicant complained that the rejection of his application for authorisation to adopt had implicitly been based on his sexual orientation alone. The Chamber found that Article 14 of the Convention, taken in conjunction with Article 8, was applicable (§ 33). 51. Accordingly, Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case. 52. In these circumstances the Court dismisses the preliminary objection raised by the Government. It also considers, in the light of the parties'submissions, that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 A. Submissions of the parties 1. The applicant 53. The applicant maintained that the refusal to grant her authorisation to adopt had been based on her “lifestyle”, in other words her homosexuality. In her view, this was borne out by the screening of her application and the opinion of the adoption board. She also considered that part of the judgment delivered by the Conseil d'Etat was worded in the same terms as the judgment it had rendered in the case of Fretté ( cited above), which showed that the Conseil d'Etat adopted a discriminatory approach. 54. With regard to the ground based on the lack of a paternal referent, she argued that while the majority of French psychoanalysts believed that a child needed a dual maternal and paternal referent, there was no empirical evidence for that belief and it had been disputed by many other psychotherapists. Moreover, in the present case the Government had not shown that there was a practice of excluding single heterosexual women who did not have a male partner. 55. With regard to the argument based on her partner's place in and attitude to her plan to adopt, she submitted that this was an illegal ground. Articles 343 and 343-1 of the Civil Code provided that adoption was open to married couples and single persons : partners were not concerned and therefore were not a party to the adoption procedure and did not enjoy any legal status once the child was adopted. Having regard to her right to be subject to foreseeable legal rules, the applicant contested a ground for rejection of her application that had no basis in the law itself. 56. The applicant went on to stress that she and her partner had had a meeting with the social worker and that subsequently the various officials involved in screening her application for authorisation had never asked to meet her partner. Either steps should have been taken to interview her partner or this ground had in reality served as a pretext for rejecting her application purely on the basis of her sexual orientation. 57. The applicant submitted that the difference in treatment in her regard had no objective and reasonable justification. Particularly serious reasons were required to justify a difference in treatment based on sexual orientation. There were no such reasons in this case. 58. With regard to the division in the scientific community ( Fretté, § 42), particularly serious reasons were required to justify a difference in treatment of homosexuals. The burden of proving the existence of any scientific reasons was on the Government and if they had failed to prove in Fretté and in the instant case that there was a consensus in the scientific community, this was because there was no known study on the subject. 59. The applicant disputed the existence of a “ legitimate aim ”, since children's health was not really in issue here and the Conseil d'Etat had not explained how the child's health might be endangered. She submitted that three risks were generally cited: first, the alleged risk of the child becoming homosexual, which, quite apart from the fact that there was nothing reprehensible about such an eventuality and that the majority of homosexuals had heterosexual parents, was a prejudiced notion; second, the child would be exposed to the risk of developing psychological problems : that risk had never been proved and recent studies showed that being raised in a homoparental family did not incline a child to any particular disorder; besides that, the right to adopt that existed in some democratic countries showed that there was no risk for the child. Lastly, there was no long-term risk that the child would suffer on account of homophobic prejudices towards the parents and, in any event, the prejudices of a sexual majority did not constitute sufficient justification. 60. She pointed out that the practice of the administrative authorities was inconsistent in France, where some départements no longer refused authorisation to single homosexual applicants. She also stated that the civil courts allowed adoption by the same-sex partner of the original parent. 61. In Europe there had been a steady development in the law in favour of adoption by same-sex couples since the Fretté judgment ( cited above, § 41), with some ten European States now allowing it. The applicant also referred to a European consensus in favour of making adoption available to single homosexuals in the member States of the Council of Europe which allowed adoption by single persons, other than France where decisions were made on a discretionary basis. The same was true outside Europe, where case-law developments were in favour of adoption by homosexuals in the interests of children needing a home. 62. Lastly, she disputed the argument that there were insufficient numbers of children eligible for adoption, to which the Court had adhered in its Fretté judgment ( cited above, § 42), arguing that the number of children eligible for adoption in the world exceeded the number of prospective adoptive parents and that making a legal possibility available should not depend on the effective possibility of exercising the right in question. 2. The Government 63. The Government pointed out that authorisation to adopt was issued at local, and not national, level by the president of the council for the département after obtaining the opinion of an adoption board at département level. In 2005, 13, 563 new applications had been submitted, of which barely 8 % had not been satisfied ( with less than 6 % being refused authorisation and about 2 % being withdrawn ). In 2006, 4, 000 visas had been granted by the relevant authorities to foreign children being adopted. The Government stated that they could not provide statistics relating to the applicants'sexual orientation, as the collecting or processing of personal data about a person's sexual life were prohibited under French law. 64. The Government submitted, in the alternative, that the present case did not lend itself to a review of the Court's finding in the Fretté judgment ( cited above ), since present -day conditions had not sufficiently changed to justify a departure from precedent. 65. With regard to national laws, there was no European consensus on the subject, with only nine out of forty-six member States of the Council of Europe moving towards adoption by same-sex couples and some countries not making adoption available to single persons or allowing it under more restrictive conditions than in France. Moreover, that observation should be qualified by the nature of those laws and the conditions that had to be met. 66. The conclusion reached by the Court in Fretté regarding the division in the scientific community was still valid today. The Government justified the failure to produce studies identifying problems or differences in development in children raised by homosexual couples by the fact that the number of children raised by a homosexual couple was unknown and the estimated numbers highly variable. Besides the complexity of the various situations that might be encountered, the existing studies were insufficiently thorough because they were based on insufficiently large samples, failed to take a detached approach and did not indicate the profile of the single-parent families in question. Child psychiatrists or psychoanalysts defended different theories, with a majority arguing that a dual maternal and paternal referent in the home was necessary. 67. There were also still wide differences in public opinion since Fretté ( cited above, § 42). 68. The Government confirmed that the reality was that applications to adopt outnumbered children eligible for adoption. Their international obligations, particularly Articles 5 and 15 of the Hague Convention, compelled them to select candidates on the basis of those best able to provide the child with a suitable home. 69. Lastly, they pointed out that none of the sixty or so countries from which French people adopted children authorised adoption by same-sex couples. International adoption might therefore remain a purely theoretical possibility for homosexuals despite the fact that their domestic law allowed it. B. The Court's assessment 70. The Court observes that in Fretté v. France (cited above) the Chamber held that the decisions to reject the application for authorisation had pursued a legitimate aim, namely to protect the health and rights of children who could be involved in an adoption procedure (§ 38). With regard to whether a difference in treatment was justified, and after observing that there was no common ground between the legal systems of the Contracting States, the Chamber found it quite natural that the national authorities should enjoy a wide margin of appreciation when they were asked to make rulings on such matters, subject to review by the Court (§ 41). Having regard to the competing interests of the applicant and children who were eligible for adoption, and to the paramountcy of the latter's best interests, it noted that the scientific community was divided over the possible consequences of a child being adopted by one or more homosexual parents, that there were wide differences in national and international opinion and that there were not enough children to adopt to satisfy demand (§ 42). Taking account of the broad margin of appreciation to be left to States in this area and to the need to protect children's best interests to achieve the desired balance, the Chamber considered that the refusal to authorise adoption had not infringed the principle of proportionality and that, accordingly, the justification given by the Government appeared objective and reasonable and the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention (§§ 42 and 43). 71. The Court notes that the present case also concerns the question of how an application for authorisation to adopt submitted by a homosexual single person is dealt with; it nonetheless differs in a number of respects from the above-cited case of Fretté. The Court notes in particular that whilst the ground relating to the lack of a referent of the other sex features in both cases, the domestic administrative authorities did not – expressly at least – refer to E.B.'s “choice of lifestyle” (see Fretté, cited above, § 32). Furthermore, they also mentioned the applicant's qualities and her child-raising and emotional capacities, unlike in Fretté where the applicant was deemed to have had difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child (§§ 28 and 29). Moreover, in the instant case the domestic authorities had regard to the attitude of E.B.'s partner, with whom she had stated that she was in a stable and permanent relationship, which was a factor that had not featured in the application lodged by Mr Fretté. 72. In the instant case the Court notes that the domestic administrative authorities, and then the courts that heard the applicant's appeal, based their decision to reject her application for authorisation to adopt on two main grounds. 73. With regard to the ground relied on by the domestic authorities relating to the lack of a paternal or maternal referent in the household of a person seeking authorisation to adopt, the Court considers that this does not necessarily raise a problem in itself. However, in the circumstances of the present case it is permissible to question the merits of such a ground, the ultimate effect of which is to require the applicant to establish the presence of a referent of the other sex among her immediate circle of family and friends, thereby running the risk of rendering ineffective the right of single persons to apply for authorisation. The point is germane here because the case does not concern an application for authorisation to adopt by a – married or unmarried – couple, but by a single person. In the Court's view, that ground might therefore have led to an arbitrary refusal and have served as a pretext for rejecting the applicant's application on grounds of her homosexuality. 74. The Court observes, moreover, that the Government, on whom the burden of proof lay ( see, mutatis mutandis, Karner v. Austria, no. 40016/98, §§ 41-42, ECHR 2003 ‑ IX ), were unable to produce statistical information on the frequency of reliance on that ground according to the – declared or known – sexual orientation of the persons applying for adoption, which alone could provide an accurate picture of administrative practice and establish the absence of discrimination when relying on that ground. 75. In the Court's view, the second ground relied on by the domestic authorities, based on the attitude of the applicant's partner, calls for a different approach. Although she was the long-standing and declared partner of the applicant, Ms R. did not feel committed by her partner's application to adopt. The authorities, which constantly remarked on this point – expressly and giving reasons – concluded that the applicant did not provide the requisite safeguards for adopting a child. 76. It should first be noted that, contrary to the applicant's submissions, the question of the attitude of her partner, with whom she stated that she was in a stable and lasting relationship, is not without interest or relevance in assessing her application. It is legitimate for the authorities to ensure that all safeguards are in place before a child is taken into a family. Accordingly, where a male or female applicant, although unmarried, has already set up home with a partner, that partner's attitude and the role he or she will necessarily play on a daily basis in the life of the child joining the home set-up require a full examination in the child's best interests. It would moreover be surprising, to say the least, if the relevant authorities, having been informed of the existence of a de facto couple, pretended to be unaware of that fact when assessing the conditions in which the child would be given a home and his future life in that new home. The legal status of a person seeking to adopt is not incompatible with an examination of his or her actual situation and the subsequent finding of not one but two adults in the household. 77. The Court notes, moreover, that Article 4 of the Decree of 1 September 1 998 ( see paragraph 28 above ) requires the president of the council for the relevant département to satisfy himself that the conditions in which the applicant is proposing to provide the child with a home meet the needs of an adopted child from a family, child-rearing and psychological perspective. The importance of these safeguards – of which the authorities must be satisfied before authorising a person to adopt a child – can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of 20 November 1989, the Hague Convention of 29 May 1993 or the draft European Convention on the Adoption of Children ( see paragraphs 29-31 above ). 78. In the Court's view, there is no evidence to establish that the ground in question was based on the applicant's sexual orientation. On the contrary, the Court considers that this ground, which has nothing to do with any consideration relating to the applicant's sexual orientation, is based on a simple analysis of the known, de facto situation and its consequences for the adoption of a child. 79. The applicant cannot therefore be deemed to have been discriminated against on the ground of her sexual orientation in that regard. 80. Nonetheless, these two main grounds form part of an overall assessment of the applicant's situation. For this reason, the Court considers that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision. 81. With regard to the administrative phase, the Court observes that the president of the council for the département did not base his decision exclusively or principally on the second ground, but on “ all ” the factors involved – that is, both grounds – without it being possible to consider that one of them was predominant or that one of them alone was sufficient to make him decide to refuse authorisation ( see paragraph 17 above ). 82. With regard to the judicial phase, the Nancy Administrative Court of Appeal noted that the decision was based on two grounds: the lack of a paternal referent and the ambivalence of the commitment of each member of the household. It added that the documents in the file and the conclusions reached after examining the application showed that the applicant's lifestyle did not provide the requisite safeguards for adopting a child, but disputed that the president of the council for the département had refused authorisation on the basis of a position of principle regarding her choice of lifestyle, namely, her homosexuality ( see paragraph 24 above ). 83. Subsequently, the Conseil d'Etat held that the two grounds on which the applicant had been refused authorisation to adopt were in keeping with the statutory provisions. It also held that the reference to the applicant's “lifestyle” could be explained by the documents in the file submitted to the tribunals of fact, which showed that the applicant was, at the time of her application, in a stable homosexual relationship, but that this could not be construed as a decision based on a position of principle regarding her sexual orientation or as any form of discrimination ( see paragraph 25 above ). 84. The Court therefore notes that the administrative courts went to some lengths to rule that although regard had been had to the applicant's sexual orientation, it had not been the basis for the decision in question and had not been considered from a hostile position of principle. 85. However, in the Court's opinion the fact that the applicant's homosexuality featured to such an extent in the reasoning of the domestic authorities is significant. Besides their considerations regarding the applicant's “ lifestyle ”, they above all confirmed the decision of the president of the council for the département. The Court points out that the latter reached his decision in the light of the opinion given by the adoption board whose various members had expressed themselves individually in writing, mainly recommending, with reasons in support of that recommendation, that the application be refused on the basis of the two grounds in question. It observes that the manner in which certain opinions were expressed was indeed revealing in that the applicant's homosexuality was a determining factor. In particular, the Court notes that in his opinion of 12 October 1998 the psychologist from the children's welfare service recommended that authorisation be refused, referring to, among other things, an “ unusual attitude [ on the part of the applicant ] to men in that men are rejected” (see paragraph 13 above). 86. The Court observes that at times it was her status as a single person that was relied on as a ground for refusing the applicant authorisation to adopt, whereas the law makes express provision for the right of single persons to apply for authorisation to adopt. This emerges particularly clearly from the conclusions of the psychologist who, in her report on her interviews with the applicant of 28 August 1998, stated, with express reference to the applicant's case and not as a general comment – since she prefaces her remark with the statement that she is not seeking to diminish the applicant's confidence in herself or to insinuate that she would be harmful to a child – that “all the studies on parenthood show that a child needs both its parents ” ( see paragraph 11 above ). On 28 October 1998 the adoption board's representative from the Family Council for the association of children currently or formerly in State care recommended refusing authorisation on the ground that an adoptive family had to be composed “ of a mixed couple ( man and woman ) ” ( see paragraph 14 above ). 87. Regarding the systematic reference to the lack of a “ paternal referent ”, the Court disputes not the desirability of addressing the issue, but the importance attached to it by the domestic authorities in the context of adoption by a single person. The fact that it is legitimate for this factor to be taken into account should not lead the Court to overlook the excessive reference to it in the circumstances of the present case. 88. Thus, notwithstanding the precautions taken by the Nancy Administrative Court of Appeal, and subsequently by the Conseil d'Etat, to justify taking account of the applicant's “ lifestyle ”, the inescapable conclusion is that her sexual orientation was consistently at the centre of deliberations in her regard and omnipresent at every stage of the administrative and judicial proceedings. 89. The Court considers that the reference to the applicant's homosexuality was, if not explicit, at least implicit. The influence of the applicant's avowed homosexuality on the assessment of her application has been established and, having regard to the foregoing, was a decisive factor leading to the decision to refuse her authorisation to adopt (see, mutatis mutandis, Salgueiro da Silva Mouta, cited above, § 35). 90. The applicant therefore suffered a difference in treatment. Regard must be had to the aim behind that difference in treatment and, if the aim was legitimate, to whether the different treatment was justified. 91. The Court reiterates that, for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised” ( see, inter alia, Karlheinz Schmidt, cited above, § 24; Petrovic, cited above, § 30; and Salgueiro da Silva Mouta, cited above, § 29). Where sexual orientation is in issue, there is a need for particularly convincing and weighty reasons to justify a difference in treatment regarding rights falling within Article 8 ( see, mutatis mutandis, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 89, ECHR 1999-VI; Lustig-Prean and Beckett v. the United Kingdom, nos. 31417/96 and 32 377/96, § 82, 27 September 1999; and S.L. v. Austria, no. 45330/99, § 37, ECHR 2003-I). 92. In that connection the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions ( see, inter alia, Johnston and Others, cited above, § 53). 93. In the Court's opinion, if the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant's sexual orientation this would amount to discrimination under the Convention ( see Salgueiro da Silva Mouta, cited above, § 36). 94. The Court points out that French law allows single persons to adopt a child (see paragraph 49 above), thereby opening up the possibility of adoption by a single homosexual, which is not disputed. Against the background of the domestic legal provisions, it considers that the reasons put forward by the Government cannot be regarded as particularly convincing and weighty such as to justify refusing to grant the applicant authorisation. 95. The Court notes, lastly, that the relevant provisions of the Civil Code are silent as to the necessity of a referent of the other sex, which would not, in any event, be dependent on the sexual orientation of the adoptive single parent. In this case, moreover, the applicant presented, in the terms of the judgment of the Conseil d'Etat, “ undoubted personal qualities and an aptitude for bringing up children ”, which were assuredly in the child's best interests, a key notion in the relevant international instruments ( see paragraphs 29-31 above ). 96. Having regard to the foregoing, the Court cannot but observe that, in rejecting the applicant's application for authorisation to adopt, the domestic authorities made a distinction based on considerations regarding her sexual orientation, a distinction which is not acceptable under the Convention (see Salgueiro da Silva Mouta, cited above, § 36). 97. Consequently, having regard to its finding under paragraph 80 above, the Court considers that the decision in question is incompatible with the provisions of Article 14 taken in conjunction with Article 8. 98. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 8. 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 pointed out that without the authorisation that had been refused her it was legally impossible for her to adopt a foreign child and impossible in practice to adopt a French child. Even if the French Government were to act quickly to grant her the authorisation, the discriminatory delay would be between nine and ten years. That delay was not only a psychological strain and unfair, but also reduced her chances of being able to adopt a child one day on account of her age; she had been thirty-seven when she had applied to adopt and so would be forty-six at the youngest if authorisation were finally to be granted. Accordingly, she sought an award of 50,000 euros (EUR) for non-pecuniary damage. 101. The Government did not express a view. 102. The Court considers that the applicant must have suffered non-pecuniary damage that is not sufficiently compensated by a mere finding of a violation of Article 1 4 of the Convention taken together with Article 8. Accordingly, ruling on an equitable basis, the Court awards her EUR 10,000 in just satisfaction. B. Costs and expenses 103. The applicant claimed EUR 14,352 in lawyer's fees from the introduction of the application until the outcome of the proceedings (sixty hours'work at the rate of EUR 200 per hour exclusive of VAT ), plus EUR 176 for the travel and accommodation expenses incurred in attending the hearing before the Grand Chamber, that is, a total of EUR 14 ,528. 104. The Government did not express a view. 105. The Court observes that, according to the criteria laid down in its case-law, it must ascertain whether the costs and expenses claimed were actually and necessarily incurred and were reasonable as to quantum (see, among other authorities, Öztürk v. Turkey [GC], no. 22479/93, § 83, ECHR 1999-VI). Applying the said criteria to the present case, the Court considers reasonable the amount of EUR 1 4, 528 claimed by the applicant and awards her that sum. 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 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. The domestic administrative authorities, and then the courts that heard the applicant’s appeal, had based their decision to reject her application for authorisation to adopt largely on the lack of a paternal referent in the applicant’s household, which was not a legitimate reason. Also, the influence of her homosexuality on the assessment of her application had not only been established but had also been a decisive factor. |
313 | Prevention of terrorism | II. Relevant domestic law The Constitution 11. At the material time the relevant provisions of the Constitution read as follows: Article 2 “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” Article 3 § 1 “The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.” Article 6 “Sovereignty resides unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class...” Article 10 § 1 “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” Article 14 § 1 “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.” Article 66 § 1 “Everyone linked to the Turkish State by nationality shall be Turkish.” (Former) Article 68 “Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose... Political parties shall be an indispensable part of the democratic political system. Political parties may be formed without prior permission and shall carry on their activities in accordance with the Constitution and the law. The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation, human rights, national sovereignty or the principles of a democratic secular Republic. No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship...” (Former) Article 69 “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ... Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on application by Principal State Counsel. Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party, nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ...” B. Law no. 2820 on the regulation of political parties 12. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows: Section 78 “Political parties (a) shall not aim, strive or incite third parties to change: the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State’s territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class...; jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ... (c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims...” Section 80 “Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.” Section 81 “Political parties shall not (a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or (b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities...” Section 90(1) “The constitution, programme and activities of political parties may not contravene the Constitution or this Law.” Section 96(3) “No political party shall be formed with the name ‘communist’, ‘anarchist’, ‘fascist’, ‘theocratic’ or ‘national socialist’, the name of a religion, language, race, sect or region, or a name including any of the above words or similar ones.” Section 101 “The Constitutional Court shall dissolve a political party where (a) the party’s programme or constitution ... is contrary to the provisions of Chapter 4 of this Law; or (b) its membership, central committee or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law or the Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions...” Section 107(1) “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” Chapter 4 of the Law, referred to in section 101, includes in particular sections 90(1) and 96(3), which are reproduced above. PROCEEDINGS BEFORE THE COMMISSION 13. The applicants applied to the Commission on 7 January 1992. They maintained that the dissolution of the TBKP by the Constitutional Court had infringed (a) Articles 6 § 2, 9, 10 and 11 of the Convention, taken individually and together with Articles 14 and (in respect of Articles 9, 10 and 11) 18 of the Convention; and (b) Articles 1 and 3 of Protocol No. 1. 14. On 6 December 1994 the Commission declared the complaint under Article 6 § 2 of the Convention inadmissible and the remainder of the application (no. 19392/92) admissible. 15. In its report of 3 September 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 11 of the Convention, that no separate issue arose under Articles 9 and 10 and that there was no need to consider separately the complaints under Articles 14 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1. The full text of the Commission’s opinion is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 16. In their memorial, the Government “... ask the Court to declare that there has been no violation of Articles 9, 10, 11, 14 or 18 of the Convention or of Articles 1 or 3 of Protocol No. 1”. 17. The applicants sought a declaration that “the facts on which the application is based ... constitute a violation of Article 11 of the Convention and of Articles 1 and 3 of Protocol No. 1”. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 18. The applicants maintained that the fact that the United Communist Party of Turkey (“the TBKP ”) had been dissolved and its leaders – including Mr Sargın and Mr Yağcı – banned from holding similar office in any other political party had infringed their right to freedom of association, as guaranteed by 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.” Applicability of Article 11 1. Submissions of those appearing before the Court (a) The Government 19. The Government submitted that Article 11 did not in any event apply to political parties. Where in its constitution or programme a party attacked a State’s constitutional order, the Court should declare the Convention to be inapplicable ratione materiae or apply Article 17, rather than apply Article 11. Even a cursory examination of the Convention showed that neither Article 11 nor any other Article made any mention of political parties or referred to the States’ constitutional structures. It was significant that the only Article containing a reference to political institutions was in Protocol No. 1 (Article 3) and did not confer any right on individuals as it was worded so as to create an obligation on the States. Unlike other forms of association, which were usually dealt with in national constitutions as manifestations of freedom of association, the provisions concerning political parties were in general to be found in the part relating to fundamental constitutional structures. That was so, for instance, in Germany, Denmark, Spain, France, Italy and Greece. 20. The constitution and programme of the TBKP were clearly incompatible with Turkey’s fundamental constitutional principles. By choosing to call itself “communist”, the TBKP perforce referred to a subversive doctrine and a totalitarian political goal that undermined Turkey’s political and territorial unity and jeopardised the fundamental principles of its public law, such as secularism. “Communism” invariably presupposed seizing power and aimed to establish a political order that would be unacceptable, not just in Turkey but also in the other member States of the Council of Europe. Further, the use of certain names was also proscribed in other legal systems in the West. In that respect, the Government referred to the German, Polish and Portuguese Constitutions. In any event, whatever the intentions of the TBKP and its leaders in choosing the name “communist” in 1990 (after the fall of the Berlin Wall) may have been, that name could not, in the Government’s view, be considered devoid of political meaning. 21. Furthermore, if the TBKP were able to achieve its political aims, Turkey’s territorial and national integrity would be seriously undermined. By drawing a distinction in its constitution and programme between Turks and Kurds, referring to the Kurds’ “national” identity, requesting constitutional recognition of “the existence of the Kurds”, describing the Kurds as a “nation” and asserting their right to self-determination, the TBKP had opened up a split that would destroy the basis of citizenship, which was independent of ethnic origin. As that was tantamount to challenging the very principles underpinning the State, the Constitutional Court had had to review the constitutionality of that political aim. In so doing, it had followed the line taken by the German Constitutional Court in its judgment of 31 October 1991 on the right of foreign nationals to vote in local elections and by the French Constitutional Council in its decision of 9 May 1991 on the status of Corsica. In the Government’s submission, the States Parties to the Convention had at no stage intended to submit their constitutional institutions, and in particular the principles they considered to be the essential conditions of their existence, to review by the Strasbourg institutions. For that reason, where a political party such as the TBKP had called those institutions or principles into question, it could not seek application of the Convention or its Protocols. At the very least, Article 17 of the Convention should be applied in respect of the TBKP since the party had called into question both the bases of the Convention and the freedoms it secured. In that connection, the Government cited the Commission’s decisions in the cases of Glimmerveen and Hagenbeek v. the Netherlands (application nos. 8348/78 and 8406/78, Decisions and Reports (DR) 18, p. 187); Kühnen v. Germany (application no. 12194/86, DR 56, p. 205); H., W., P. and K. v. Austria (application no. 12774/87, DR 62, p. 216); and Remer v. Germany (application no. 25096/94, DR 82-A, p. 117). In a context of vicious terrorism such as Turkey was experiencing, the need to preclude improper use of the Convention by applying Article 17 was even more obvious, as the Turkish authorities had to prohibit the use of “expressions” and the formation of “associations” that would inevitably incite violence and enmity between the various sections of Turkish society. (b) The applicants 22. The applicants maintained that there was no doubt that political parties came within the ambit of Article 11. They pointed out that the scope of the Convention could not be restricted by relying on the Turkish Constitution. Domestic law had to be construed in the light of the Convention, not the other way round. (c) The Commission 23. The Commission expressed the opinion that there was nothing in the wording of Article 11 to limit its scope to a particular form of association or group or suggest that it did not apply to political parties. On the contrary, if Article 11 was considered to be a legal safeguard that ensured the proper functioning of democracy, political parties were one of the most important forms of association it protected. In that connection, the Commission referred to a number of decisions in which it had examined, under Article 11, various restrictions on the activities of political parties and even the dissolution of such parties, thereby implicitly accepting that Article 11 applied to that type of association (see the German Communist Party case, application no. 250/57, Yearbook 1, p. 222; the Greek case, Yearbook 12, p. 170, § 392; the France, Norway, Denmark, Sweden and the Netherlands v. Turkey case, applications nos. 9940–9944/82, DR 35, p. 143). At the hearing before the Court the Delegate of the Commission also said that it was unnecessary to apply Article 17 of the Convention since the present case was clearly distinguishable from the rare cases in which the Commission had had recourse to that provision. In such cases the aim of the offending actions of the applicants concerned had been to spread violence (see the German Communist Party case cited above) or hatred (see the Remer case cited above). Conversely, there was nothing in the TBKP ’s constitution or programme to suggest that it was not a democratic party, or that it resorted to illegal or undemocratic methods, encouraged the use of violence, aimed to undermine Turkey’s democratic and pluralist political system or pursued objectives that were racist or likely to destroy the rights and freedoms of others. 2. The Court’s assessment 24. The Court considers that the wording of Article 11 provides an initial indication as to whether political parties may rely on that provision. It notes that although Article 11 refers to “freedom of association with others, including the right to form … trade unions …”, the conjunction “including” clearly shows that trade unions are but one example among others of the form in which the right to freedom of association may be exercised. It is therefore not possible to conclude, as the Government did, that by referring to trade unions – for reasons related mainly to issues that were current at the time – those who drafted the Convention intended to exclude political parties from the scope of Article 11. 25. However, even more persuasive than the wording of Article 11, in the Court’s view, is the fact that political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system (see paragraph 45 below), there can be no doubt that political parties come within the scope of Article 11. 26. As to the Government’s allegation that the TBKP had called Turkey’s constitutional order into question and the inferences that were to be drawn from that fact, it should be said at the outset that at this stage the Court does not have to decide whether that allegation is true or whether it could be sustained solely on the basis of the constitution and programme of the party concerned. The Court refers in this connection to its observations concerning the necessity of the impugned interference (see paragraphs 42 ‑ 47 below). 27. The Court notes on the other hand that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions. As the Court has said in the past, while it is in principle open to the national authorities to take such action as they consider necessary to respect the rule of law or to give effect to constitutional rights, they must do so in a manner which is compatible with their obligations under the Convention and subject to review by the Convention institutions (see the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246-A, p. 29, § 69). 28. The Preamble to the Convention refers to the “common heritage of political traditions, ideals, freedom and the rule of law” (see paragraph 45 below), of which national constitutions are in fact often the first embodiment. Through its system of collective enforcement of the rights it establishes (see the Loizidou v. Turkey judgment of 23 March 1995 ( preliminary objections ), Series A no. 310, p. 26, § 70), the Convention reinforces, in accordance with the principle of subsidiarity, the protection afforded at national level, but never limits it (Article 60 of the Convention). 29. The Court points out, moreover, that Article 1 requires the States Parties to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. That provision, together with Articles 14, 2 to 13 and 63, demarcates the scope of the Convention ratione personae, materiae and loci (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 238). It makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member States’ “jurisdiction” from scrutiny under the Convention. It is, therefore, with respect to their “jurisdiction” as a whole – which is often exercised in the first place through the Constitution – that the States Parties are called on to show compliance with the Convention. 30. The political and institutional organisation of the member States must accordingly respect the rights and principles enshrined in the Convention. It matters little in this context whether the provisions in issue are constitutional (see, for example, the Gitonas and Others v. Greece judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV) or merely legislative (see, for example, the Mathieu-Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113). From the moment that such provisions are the means by which the State concerned exercises its jurisdiction, they are subject to review under the Convention. 31. Moreover, it may on occasion prove difficult, even artificial, in proceedings before the Court, to attempt to distinguish between what forms part of a State’s institutional structures and what relates to fundamental rights in the strict sense. That is particularly true of an order for dissolution of the kind in issue in the present case. In view of the role played by political parties (see paragraph 25 above), such measures affect both freedom of association and, consequently, democracy in the State concerned. 32. It does not, however, follow that the authorities of a State in which an association, through its activities, jeopardises that State’s institutions are deprived 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 system of the Convention (see, mutatis mutandis, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 28, § 59). For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11, which the Court considers below (see paragraphs 37 et seq.). Only when that review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied. 33. Before the Commission the Government also submitted, in the alternative, that while Article 11 guaranteed freedom to form an association, it did not on that account prevent one from being dissolved. The Commission took the view that freedom of association not only concerned the right to form a political party but also guaranteed the right of such a party, once formed, to carry on its political activities freely. The Court reiterates that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, among other authorities, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, § 33, and the Loizidou judgment cited above, p. 27, § 72). The right guaranteed by Article 11 would be largely theoretical and illusory if it were limited to the founding of an association, since the national authorities could immediately disband the association without having to comply with the Convention. It follows that the protection afforded by Article 11 lasts for an association’s entire life and that dissolution of an association by a country’s authorities must accordingly satisfy the requirements of paragraph 2 of that provision (see paragraphs 35–47 below). 34. In conclusion Article 11 is applicable to the facts of the case. B. Compliance with Article 11 Whether there has been an interference 35. Before the Commission, the Government submitted that the dissolution of the TBKP had not constituted an interference with Mr Sargın and Mr Yağcı’s right to freedom of association. However, it did not reiterate that argument before the Court. 36. Like the Commission, the Court concludes that there has been an interference with that right in respect of all three applicants, having regard (in the case of Mr Sargın and Mr Yağcı) to their role as founders and leaders of the party and to the ban which prevented them from discharging similar responsibilities in any other political grouping (see paragraph 10 above). 2. Whether the interference was justified 37. Such an 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. (a) “Prescribed by law” 38. It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based on Articles 2, 3 § 1, 6, 10 § 1 and 14 § 1, and former Article 68 of the Constitution and sections 78, 81 and 96(3) of Law no. 2820 on the regulation of political parties (see paragraphs 11–12 above). (b) Legitimate aim 39. The Government maintained that the interference pursued a number of legitimate aims: ensuring national security, public safety and territorial integrity and protecting the rights and freedoms of others. If the Court had accepted, as it had done in the Hadjianastassiou v. Greece judgment of 16 December 1992 (Series A no. 252), that an isolated case of espionage could harm national security, there was all the more reason to reach a similar conclusion where, as in the instant case, the very existence of a State Party to the Convention was threatened. 40. The Commission distinguished between the different grounds relied on by the Constitutional Court for dissolving the TBKP. Inasmuch as the interference was based on the use of the word “communist” in the party’s name, it could not, in the Commission’s view, be said to be justified by any of the legitimate aims referred to in Article 11. Indeed, the Constitutional Court had recognised that there was nothing to suggest that the TBKP would not respect democratic institutions or that it intended to establish a dictatorship. In addition, Law no. 3713 on the prevention of terrorism, which came into force on 12 April 1991, had repealed the provisions of the Criminal Code making it an offence to participate in organisations or activities that professed to be, inter alia, communist in inspiration. On the other hand, inasmuch as the dissolution was based on a distinction drawn in the TBKP’s programme between Turks and Kurds, it could, in the Commission’s view, be said to have been ordered with the aim of protecting territorial integrity and thus “national security”. It was not that the TBKP was a terrorist organisation or one sponsoring terrorism, but it could be regarded as openly pursuing the creation of a separate Kurdish nation and consequently a redistribution of the territory of the Turkish State. 41. Like the Commission, the Court considers that the dissolution of the TBKP pursued at least one of the “legitimate aims” set out in Article 11: the protection of “national security”. (c) “Necessary in a democratic society” 1. General principles 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 (see paragraph 25 above). 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. 44. In the Informationsverein Lentia and Others v. Austria judgment the Court described the State as the ultimate guarantor of the principle of pluralism (see the judgment of 24 November 1993, Series A no. 276, p. 16, § 38). In the political sphere that responsibility means that the State is under the obligation, among others, to hold, in accordance with Article 3 of Protocol No. 1, 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. Such expression is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country’s population. By relaying this range of opinion, not only within political institutions but also – with the help of the media – at all levels of social life, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, § 42, and the Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 23, § 43). 45. Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p. 27, § 75). That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights (see the Klass and Others judgment cited above, p. 28, § 59). The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, § 88); it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 27, § 53, and the Soering judgment cited above, p. 34, § 87). 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. The Court has identified certain provisions of the Convention as being characteristic of democratic society. Thus in its very first judgment it held that in a “democratic society within the meaning of the Preamble and the other clauses of the Convention”, proceedings before the judiciary should be conducted in the presence of the parties and in public and that that fundamental principle was upheld in Article 6 of the Convention (see the Lawless v. Ireland judgment of 14 November 1960 ( preliminary objections and questions of procedure ), Series A no. 1, p. 13). In a field closer to the one concerned in the instant case, the Court has on many occasions stated, for example, that 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 (see, among other authorities, the Vogt judgment cited above, p. 25, § 52), whereas in the Mathieu-Mohin and Clerfayt judgment cited above it noted the prime importance of Article 3 of Protocol No. 1, which enshrines a characteristic principle of an effective political democracy (p. 22, § 47). 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). 2. Application of the principles to the present case (i) Submissions of those appearing before the Court The applicants 48. The applicants argued that the reasons given by the Constitutional Court for dissolving the TBKP were ill-founded. In their submission, there was a contradiction in penalising a political party in July 1991 for calling itself “communist” when, on the one hand, it had not been an offence since April 1991 to carry on activities inspired by communist ideology and, on the other, the Constitutional Court had itself accepted that the TBKP was not seeking the domination of one social class over the others and that its constitution and programme were in accordance with democratic principles. As to the separatist activities attributed to the TBKP by the Government, the applicants affirmed that there was no basis for such an allegation either in the party’s documents or in the statements of its members. On the contrary, the party’s constitution was very clear on that point when it stated that the Kurdish problem required a fair, democratic and peaceful solution and the voluntary co-existence of the Turkish and Kurdish peoples within Turkish territory on the basis of equal rights. The TBKP was therefore not opposed to the territorial integrity of the country and had never advocated separatism. Further, the party’s leaders had not been prosecuted under Article 125 of the Criminal Code, which made it a capital offence actively to support separatism. The fact remained, however, that the authorities considered the mere use of the word “Kurd” to be discriminatory, even though the problem was such that any political party wishing to resolve it could not avoid mentioning it. The problem existed and minority groups existed, but political parties could not refer to them. Lastly, with regard to the allegation that the TBKP was a terrorist association, the applicants pointed out that it had been dissolved only ten days after it was formed so that it had had no time for any activity whatsoever. The TBKP ’s future activities could therefore only have been a matter for speculation and could not have formed the basis for a decision to dissolve the party. The Government 49. The Government pointed out that freedom of association – like freedom of expression – was not absolute and often conflicted with other paramount interests in a democratic society. Accordingly, the margin of appreciation had to be gauged in the light of the legitimate aim pursued by the interference and the background to the facts of the case. In that regard, the Government referred to the Wingrove v. the United Kingdom judgment of 25 November 1996 ( Reports 1996-V), in which the Court had, when assessing the facts, taken into account the needs arising from their historical context. If the TBKP ’s constitution and programme were analysed in a similar way, a pressing need to impose the impugned restriction in circumstances in which territorial integrity and national security were threatened would be found not just in the case of Turkey, but also in that of each of the Council of Europe’s member States. What was at stake was the essential conditions for a State’s existence in the international order, conditions which were even guaranteed by the Charter of the United Nations. Further, it was apparent from the case-law that where the interference pursued as a legitimate aim the protection of public order, territorial integrity, the public interest or democracy, the Convention institutions did not require that the risk of violence justifying the interference should be real, current or imminent. As authority for that proposition, the Government cited the decisions in which the Commission had declared inadmissible the cases of X v. Austria (application no. 5321/71, Collection of Decisions 42, p. 105), T. v. Belgium (application no. 9777/82, DR 34, p. 158) and Association A. and H. v. Austria (application no. 9905/82, DR 36, p. 187). In addition, the Commission had accepted in two German cases that restrictions on freedom of expression could be justified by national-security considerations without its being necessary to determine whether the exercise of freedom of expression had had any practical implications (see the Kuck v. Germany case, application no. 29742/96, and the Fleischle v. Germany case, application no. 29744/96). Lastly, in the Purcell and Others v. Ireland case, the Commission had taken into account the terrorist threat and the public interest in countering it (application no. 15404/89, DR 70, p. 262). In all those cases the actual content of the expressions concerned had sufficed to warrant the conclusion that restrictions had to be imposed on their use, without its being necessary to determine whether there was a current risk of violence or a causal link with an act of violence directly provoked by the use of the expression. On the other hand, in the Handyside v. the United Kingdom judgment of 7 December 1976 (Series A no. 24), the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979 (Series A no. 30), and the Lingens and Castells judgments cited above, in all of which the Court had held that there had been a violation of Article 10, the publications concerned had not called into question the very existence of the State and the democratic order. In short, faced with a challenge to the fundamental interests of the national community, such as national security and territorial integrity, the Turkish authorities had not in any way exceeded the margin of appreciation conferred on them by the Convention. The Commission 50. At the hearing before the Court the Delegate of the Commission, in a preliminary observation, stressed the difference between implementing an illegal programme and implementing one in which all that was sought was a change in the law. While that distinction could sometimes be difficult to draw in practice, associations, including political parties, should be able to campaign for a change in the law or the legal and constitutional structures of the State, provided of course that the means used for the purpose were in all respects lawful and democratic and that the proposed change was itself compatible with fundamental democratic principles. The Commission considered that the rule that freedom of expression extends to “information” and “ideas” that offend, shock or disturb (see, among many other authorities, the Handyside judgment cited above) also applied in the present case with regard to Article 11, since the order for dissolving the TBKP had been made solely on the basis of information and ideas expressed in its constitution and programme. Further, the Commission noted that in order to justify dissolving the TBKP, the Constitutional Court had relied on passages that formed only a small part of the party’s constitution. Moreover, those passages did not contain any incitement to violence but, on the contrary, showed the TBKP ’s desire to achieve its objectives – even those in regard to the position of the population of Kurdish origin – by democratic means and in accordance with Turkish laws and institutions. (ii) The Court’s assessment 51. The Court notes at the outset that the TBKP was dissolved even before it had been able to start its activities and that the dissolution was therefore ordered solely on the basis of the TBKP ’s constitution and programme, which however – as is for that matter apparent from the Constitutional Court’s decision – contain nothing to suggest that they did not reflect the party’s true objectives and its leaders’ true intentions (see paragraph 58 below). Like the national authorities, the Court will therefore take those documents as a basis for assessing whether the interference in question was necessary. 52. It is to be noted further that in support of his application for a dissolution order, Principal State Counsel at the Court of Cassation made four submissions. Two of these were rejected by the Constitutional Court: the claim that the TBKP intended to maintain that the proletariat was superior to the other social classes and the argument that it was contrary to section 96(2) of Law no. 2820 for it to claim to be the successor to a political party that had previously been dissolved – the Turkish Workers’ Party (see paragraph 9 above). The Court can therefore confine its review to the other two grounds, which were upheld by the Constitutional Court. 53. In the first of these it was alleged that the TBKP had included the word “communist” in its name, contrary to section 96(3) of Law no. 2820 (see paragraph 12 above). The Constitutional Court held, in particular, that that provision prohibited the formation of political parties on a purely formal ground: the mere fact of using a name proscribed in that section sufficed to trigger its application and consequently to entail the dissolution of any political party that, like the TBKP, had contravened it (see paragraph 10 above). 54. The Court considers that a political party’s choice of name cannot in principle justify a measure as drastic as dissolution, in the absence of other relevant and sufficient circumstances. In this connection, it must be noted, firstly, that on 12 April 1991 the provisions of the Criminal Code making it a criminal offence to carry on political activities inspired, in particular, by communist ideology were repealed by Law no. 3713 on the prevention of terrorism. The Court also attaches much weight to the Constitutional Court’s finding that the TBKP was not seeking, in spite of its name, to establish the domination of one social class over the others, and that, on the contrary, it satisfied the requirements of democracy, including political pluralism, universal suffrage and freedom to take part in politics (see paragraph 10 above). In that respect, the TBKP was clearly different from the German Communist Party, which was dissolved on 17 August 1956 by the German Constitutional Court (see the Commission’s decision cited above in the German Communist Party case). Accordingly, in the absence of any concrete evidence to show that in choosing to call itself “communist”, the TBKP had opted for a policy that represented a real threat to Turkish society or the Turkish State, the Court cannot accept that the submission based on the party’s name may, by itself, entail the party’s dissolution. 55. The second submission accepted by the Constitutional Court was that the TBKP sought to promote separatism and the division of the Turkish nation. By drawing a distinction in its constitution and programme between the Kurdish and Turkish nations, the TBKP had revealed its intention of working to achieve the creation of minorities which – with the exception of those referred to in the Treaty of Lausanne and the treaty with Bulgaria – posed a threat to the State’s territorial integrity. It was for that reason that self-determination and regional autonomy were both proscribed by the Constitution (see paragraph 10 above). 56. The Court notes that although the TBKP refers in its programme (see paragraph 9 above) to the Kurdish “people” and “nation” and Kurdish “citizens”, it neither describes them as a “minority” nor makes any claim – other than for recognition of their existence – for them to enjoy special treatment or rights, still less a right to secede from the rest of the Turkish population. On the contrary, the programme states: “The TBKP will strive for a peaceful, democratic and fair solution of the Kurdish problem, so that the Kurdish and Turkish peoples may live together of their free will within the borders of the Turkish Republic, on the basis of equal rights and with a view to democratic restructuring founded on their common interests.” With regard to the right to self-determination, the TBKP does no more in its programme than deplore the fact that because of the use of violence, it was not “exercised jointly, but separately and unilaterally”, adding that “the remedy for this problem is political” and that “[i]f the oppression of the Kurdish people and discrimination against them are to end, Turks and Kurds must unite”. The TBKP also said in its programme: “A solution to the Kurdish problem will only be found if the parties concerned are able to express their opinions freely, if they agree not to resort to violence in any form in order to resolve the problem and if they are able to take part in politics with their own national identity.” 57. The Court considers one of the principal characteristics of democracy to be the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned. To judge by its programme, that was indeed the TBKP ’s objective in this area. That distinguishes the present case from those referred to by the Government (see paragraph 49 above). 58. Admittedly, it cannot be ruled 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 party’s actions and the positions it defends. In the present case, the TBKP ’s programme could hardly have been belied by any practical action it took, since it was dissolved immediately after being formed and accordingly did not even have time to take any action. It was thus penalised for conduct relating solely to the exercise of freedom of expression. 59. The Court is also prepared to take into account the background of cases before it, in particular the difficulties associated with the fight against terrorism (see, among other authorities, the Ireland v. the United Kingdom judgment cited above, pp. 9 et seq., §§ 11 et seq., and the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2281 and 2284, §§ 70 and 84). In the present case, however, it finds no evidence to enable it to conclude, in the absence of any activity by the TBKP, that the party bore any responsibility for the problems which terrorism poses in Turkey. 60. Nor is there any need to bring Article 17 into play as nothing in the constitution and programme of the TBKP warrants the conclusion that it relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961 ( merits ), Series A no. 3, pp. 45–46, § 7). 61. Regard being had to all the above, a measure as drastic as the immediate and permanent dissolution of the TBKP, ordered before its activities had even started and coupled with a ban barring its leaders from discharging any other political responsibility, is disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that the measure infringed Article 11 of the Convention. II. ALLEGED VIOLATIONs OF ARTICLES 9, 10, 14 AND 18 OF THE CONVENTION 62. In their application to the Commission the applicants also complained of breaches of Articles 9, 10, 14 and 18 of the Convention. In their memorial to the Court however, they accepted the Commission’s conclusion that it was unnecessary to decide whether those provisions had been complied with in view of the finding of a violation of Article 11. The applicants did not pursue those complaints in the proceedings before the Court, which sees no reason to consider them of its own motion (see, mutatis mutandis, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1216, § 92). III. ALLEGED VIOLATIONs OF ARTICLES 1 AND 3 OF PROTOCOL No. 1 63. The applicants submitted that the effects of the TBKP ’s dissolution – its assets were confiscated and transferred to the Treasury, and its leaders were banned from taking part in elections – entailed a breach of Articles 1 and 3 of Protocol No. 1, which provide: Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 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.” 64. The Court notes that the measures complained of by the applicants were incidental effects of the TBKP ’s dissolution, which the Court has held to be in breach of Article 11. It is consequently unnecessary to consider these complaints separately. IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION 65. Article 50 of the Convention provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage The TBKP 66. The TBKP claimed 20,000,000 French francs (FRF) for pecuniary damage “to compensate for the losses [it] sustained until the end of 1997 as a result of its dissolution and of its loss of separate legal personality, which infringed [its] right to enjoy its own property, and to receive contributions from members and supporters and public aid”. With regard to future loss, the TBKP sought payment of FRF 3,000,000 per annum to run from 1 January 1998 until the judgment of the Constitutional Court was set aside and the TBKP was recognised under domestic law and had been reconstituted. 67. The Government stated firstly that having been dissolved by the Constitutional Court, the TBKP was unable to claim any public aid under the law on political parties. Even supposing that it had not been dissolved, it still did not satisfy the conditions laid down by that statute for a grant of aid. The TBKP ’s claims were based on fictitious grounds and were therefore unacceptable. 68. The Delegate of the Commission invited the Court to consider carefully whether the amounts claimed were not too hypothetical to serve as a basis for the application of Article 50. If the Court decided to award a sum under that head, he questioned whether the figures put forward by the applicants were realistic. 69. The Court notes that the claim in issue is based on an imaginary application of the provisions in the law on political parties governing the grant, subject to certain conditions, of public aid to political parties as well as on an estimation of what contributions from the TBKP ’s members and supporters would have been. The Court cannot speculate on the effect of those provisions as applied to the TBKP or on the amount of any contributions it might have received. Consequently, the claim must be dismissed, there being no causal link between the violation found and the alleged damage. 2. Mr Sargın and Mr Yağcı 70. Mr Sargın and Mr Yağcı each claimed FRF 2,000,000 for non-pecuniary damage. In support of their claims, they relied on the fact that the dissolution of the TBKP had caused them to be banned from carrying on any political activity, whether as members of the electorate or members of parliament or as founding members, managers or financial controllers of a political party. 71. In the Government’s submission, those claims were based on the assumption that there had been a breach of all the provisions of the Convention relied upon by Mr Sargın and Mr Yağcı. The Commission had, however, concluded that there had been a violation only of Article 11. The Government considered that any non-pecuniary damage would be sufficiently compensated by a finding of a violation of the Convention. 72. The Delegate of the Commission indicated that in the event of the Court’s being minded to award a sum under this head, he doubted that the amount claimed by Mr Sargın and Mr Yağcı was realistic. 73. The Court accepts that Mr Sargın and Mr Yağcı sustained non-pecuniary damage. It holds, however, that a finding of a violation of Article 11 constitutes sufficient compensation for it. B. Costs and expenses 74. The applicants sought FRF 190,000 for costs and expenses, made up of FRF 100,000 for lawyers’ fees and FRF 90,000 for all the costs of their representation before the Turkish Constitutional Court and the Convention institutions. 75. The Government considered these to be unacceptable lump-sum claims that were both exaggerated and unreasonable. 76. The Delegate of the Commission found them to be reasonable, provided that they represented necessarily and actually incurred costs. 77. Making its assessment on an equitable basis and according to the criteria laid down in its case-law, the Court awards Mr Sargın and Mr Yağcı, who actually bore the costs and expenses claimed, a total sum of FRF 120,000 under this head, to be converted into Turkish liras at the rate applicable at the date of payment. C. Default interest 78. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.87% per annum. | The Court held that there had been a violation of Article 11 (freedom of assembly and association) of the Convention. It found that the dissolution had not been “necessary in a democratic society”, noting in particular that there was no evidence that the TBKP had been responsible for terrorism problems in Turkey. |
961 | Risk of being sentenced to death | IV. RELEVANT DOMESTIC LAW A. Criminal Code 1. Territorial jurisdiction 2. Offence of abuse of power 3. Statute of limitation 4. Protection of secrecy of investigation (offence of disseminating information of criminal investigation) B. Code of Criminal Procedure 1. Prosecution of offences 2. Classified materials C. Laws on classified information and related ordinance 1. The laws on classified information (a) Situation until 2 January 2011 – “the 1999 Act” (b) Situation as from 2 January 2011 – “the 2010 Act” 2. The 2012 Ordinance D. Law on intelligence agencies V. RELEVANT INTERNATIONAL LAW A. Vienna Convention on the Law of Treaties Article 26 “ Pacta sunt servanda ” Article 27 Internal law and observance of treaties B. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts Article 7 Excess of authority or contravention of instructions Article 14 Extension in time of the breach of an international obligation Article 15 Breach consisting of a composite act Article 16 Aid or assistance in the commission of an internationally wrongful act C. International Covenant on Civil and Political Rights D. The United Nations Torture Convention E. UN General Assembly Resolution 60/147 THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION ON NON-EXHAUSTION OF DOMESTIC REMEDIES A. The parties’ arguments 1. The Government 2. The applicant B. The Court’s assessment II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION BY POLAND A. The parties’ submissions 1. The Government 2. The applicant B. The Court’s assessment 1. Applicable principles deriving from the Court’s case-law (a) General principles (b) Cases where national security or confidentiality concerns are involved 2. Application of the above principles to the present case III. THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF THE EVIDENCE A. The parties’ positions on the facts and evidence 1. The Government 2. The applicant B. Amnesty International (AI) and the International Commission of Jurists (ICJ) submissions on public knowledge of the US practices in respect of captured terrorist suspects C. The Court’s conclusion on the lack of dispute as to the facts and evidence D. The Court’s assessment of the facts and evidence 1. Applicable principles deriving from the Court’s case-law 2. Preliminary considerations concerning the assessment of the facts and evidence in the present case 3. Assessment of the facts and evidence relevant for the applicant’s allegations concerning his transfer to Poland, secret detention in Poland and his transfer from Polish territory (a) Whether the applicant’s allegations concerning the events preceding his alleged detention in Poland (capture and initial detention from the end of October to 4 December 2002 and transfer from Thailand on 4 December 2002) were proved before the Court (b) Whether the applicant’s allegations concerning his transfer to Poland, secret detention at the “black site” in Stare Kiejkuty and transfer from Poland to other CIA secret detention facilities elsewhere (4/5 December 2002 – 6 June 2003) were proved before the Court 4. Assessment of the facts and evidence relevant for Poland’s alleged knowledge of and complicity in the CIA HVD Programme (a) Special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities (b) Special status exemptions, navigation through Poland’s airspace without complete flight plans and validation of false flight plans for the CIA (c) The alleged existence of a “special” bilateral agreement with the CIA and authorisation of Poland’s role in the CIA operations by Polish officials (d) Poland’s lack of cooperation with the international inquiry bodies (e) Informal transatlantic meeting (f) Relations of cooperation between the Polish intelligence and the CIA (g) Circumstances surrounding detainees transfer and reception at the black site (h) Other elements (i) Public knowledge of treatment to which captured terrorist-suspects were subjected in US custody 5. Court’s conclusions as to Poland’s alleged knowledge of and complicity in the CIA HVD Programme IV. RESPONSIBILITY UNDER THE CONVENTION FOR COMPLICITY IN THE HVD PROGRAMME A. The parties’ submissions 1. The Government 2. The applicant B. Third-party intervener – AI/ICJ C. Applicable general principles deriving from the Court’s case-law 1. As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory 2. As regards the State’s responsibility for an applicant’s removal from its territory 3. Conclusion V. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION A. Procedural aspect of Article 3 1. The parties’ submissions (a) The Government (b) The applicant 2. The third-party interveners (a) Helsinki Foundation for Human Rights (b) The UN Special Rapporteur 3. The Court’s assessment (a) Admissibility (b) Merits B. Substantive aspect of Article 3 1. The parties’ submissions (a) The Government (b) The applicant 2. The Court’s assessment (a) Admissibility (b) Merits VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION A. The parties’ submissions 1 The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. The parties’ submissions 1. The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits VIII. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION A. The parties’ submissions B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case IX. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. The parties’ submissions 1. The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable principles deriving from the Court’s case-law (b) Application of the above principles to the present case X. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 6 TO THE CONVENTION A. The parties’ submissions 1. The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case XI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION XII. APPLICATION OF ARTICLE 46 OF THE CONVENTION XIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest | The Court held that there had been a violation by Poland of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention by having enabled the CIA to transfer the applicant to the jurisdiction of the military commission and thus exposing him to a foreseeable serious risk that he could be subjected to the death penalty following his trial. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further decided that Poland, in order to comply with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention, was required to seek to remove, as soon as possible, the risk that the applicant could be subjected to the death penalty by seeking assurances from the United States authorities that such penalty would not be imposed on him. The Court also found in this case that Poland had failed to comply with its obligation under Article 38 (obligation to furnish all necessary facilities for the effective conduct of an investigation) of the Convention. It further held that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, in both its substantive and procedural aspects, a violation of Article 5 (right to liberty and security), a violation of Article 8 (right to respect for private and family life), a violation of Article 13 (right to an effective remedy) and a violation of Article 6 § 1 (right to a fair trial) of the Convention. |
427 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Entry, residence and deportation of aliens 1. The Aliens and Immigration Law and the Refugee Law 61. The entry, residence and deportation of aliens are regulated by the Aliens and Immigration Law of 1959 (Cap. 105, as amended). 62. Under section 6(1) of the Law a person is not permitted to enter the Republic if he is a “prohibited immigrant”. This category includes any person who enters or resides in the country contrary to any prohibition, condition, restriction or limitation contained in the Law or in any permit granted or issued under the Law (section 6(1)(k )), any person who was deported from the Republic either on the basis of the Law or on the basis of any other legislation in force at the time of his or her deportation (section 6(1)(i)) and any alien who wishes to enter the Republic as an immigrant, but does not have in his or her possession an immigration permit granted in accordance with the relevant regulations (section 6(1)( l )). Furthermore, a person can be considered to be a “prohibited immigrant” on, inter alia, grounds of public order, legal order or public morals or if he or she constitutes a threat to peace (section 6(1)(g )). 63. Under the Law the deportation and, in the meantime, the detention of any alien who is considered “ a prohibited immigrant” can be ordered by the Chief Immigration Officer, who is the Minister of the Interior (section 14). Section 14(6) provides that a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for this decision, unless this is not desirable on public - security grounds, and has the right to be represented before the competent authorities and to request the services of an interpreter. In addition, Regulation 19 of the Aliens and Immigration Regulations of 1972 (as amended ) provides that when the Immigration Officer decides that a person is a prohibited immigrant, written notice to that effect must be served on that person in accordance with the second schedule of the Regulations. 64. In the case of Uros Stojicic v. the Republic of Cyprus, through the Immigration Officer (judgment of 27 June 2003, case no. 1018/2002) the Supreme Court pointed out that, due to its seriousness, a deportation order was subject to restrictions and conditions of a substantive and formal nature, which aimed to safeguard the fundamental rights of persons against whom a deportation procedure was being carried out to information and a hearing. These safeguards are provided for in the domestic law, in particular, section 14(6) of the Aliens and Immigration Law and Regulation 19 of the Aliens and Immigration Regulations, as well as in Article 1 of Protocol No. 7 to the Convention. The Supreme Court observed that Cypriot jurisprudence recognised the wide discretion of the Immigration Officer as an integral part of state sovereignty but at the same time imposed safety measures in order to prevent arbitrary acts by state organs and abuses which could lead to the infringement of fundamental and internationally safeguarded human rights. The exception provided for in section 14(6), which is grounded on reasons of public security, will apply where the authorities consider it undesirable to inform the person concerned of the reasons for the decision to detain and deport him. For example, in Kamran Sharajeel v. the Republic of Cyprus, through Minister of the Interior (judgment of 17 March 2006, case no. 725/2004, the Supreme Court accepted the application of the exception as it was obvious from the correspondence in the file that the case had been treated as urgent by the authorities and that the grounds for the deportation concerned national security. The applicant in that case had been arrested on the basis of information that he was reportedly involved with Al-Qaeda and was deported within three days of his arrest. 65. Unauthorised entry and/or stay in Cyprus are criminal offences. Until November 2011, they were punishable by imprisonment or a fine (section 19(2)) of the Aliens and Immigration Law). Law 153(I)/2011, which entered into force in November 2011, removed the punishment of imprisonment but retained the criminal nature of the contraventions and their punishment with a fine (section 18). Such punishment is not applicable to asylum seekers. Furthermore, a person who has entered the Republic illegally will not be subject to punishment solely on the basis of his illegal entry or residence, provided that he appears without unjustified delay before the authorities and gives the reasons for his illegal entry or residence (Section 7(1) of the Refugee Law, Law 6 (I) of 2000, as amended). 66. Further, section 19 A (2) of the Aliens and Immigration Law provides, inter alia, that a person who intentionally and with the aim of obtaining profit assists a third country national to enter or pass through the Republic in breach of the Aliens and Immigration Law, commits a criminal offence which is punishable, following conviction, with imprisonment of up to eight years or with a fine, or both. 2. Challenging deportation and detention orders 67. Deportation and detention orders can be challenged before the Supreme Court by way of administrative recourse under Article 146 ( 1 ) of the Constitution of the Republic of Cyprus. This provision provides as follows: “The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provisions of this Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.” 68. A recourse must be made within seventy-five days of the date when the decision or act was published or, if it was not published and in the case of an omission, when it came to the knowledge of the person making the recourse (Article 146 ( 3 ) ). Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null or void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)). The jurisdiction of the Supreme Court under Article 146 is limited to reviewing the legality of the act, decision or omission in question on the basis of the facts and circumstances existing at the time the act, decision or omission occurred. The Supreme Court will not go into the merits of the decision and substitute the decision of the administrative authority or organ concerned with its own decision; it will not decide the matter afresh. If the Supreme Court annuls the act or decision in question, the matter is automatically remitted to the appropriate administrative authority or organ for re-examination ( see the domestic case-law citations in Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, § 73, 21 July 2011 ). 69. Article 146 (6) provides for compensation as follows: “Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant”. 70. The Supreme Court has held that the lawfulness of deportation and detention orders can only be examined in the context of a recourse brought under Article 146 of the Constitution and not in the context of a habeas corpus application ( see, for example, the Supreme Court ’ s judgment of 30 December 2004 in Elena Bondar appeal no. 12166 against the refusal of an application for a writ of habeas corpus, (2004) 1 (C) CLR 2075 ). 71. A recourse does not have automatic suspensive effect under domestic law. In order to suspend deportation an application must be made seeking a provisional order. The Supreme Court has the power to issue provisional orders, suspending the enforcement of the decision taken by the administrative authority, pending the hearing of the case on the merits. A provisional order is an exceptional discretionary measure and is decided on a case- by -case basis (rule 13 of the Supreme Constitutional Court Rules 1962). The Supreme Court will grant a provisional order if an applicant establishes that the contested decision is tainted by flagrant illegality or that he or she will suffer irreparable damage from its enforcement (see amongst a number of authorities, Stavros Loizides v. the Ministry of Foreign Affairs (1995) 3 C.L.R. 233; Elpida Krokidou and others v. the Republic, (1990) 3 C C.L.R. 1857; and Sydney Alfred Moyo & another v. the Republic (1988) 3 CLR 1203 ). 72. Until recently, domestic law did not provide for legal aid in respect of a recourse under Article 146 of the Constitution against deportation and detention orders. In 2012 the Legal Aid Law (Law no. 165(I)/2002) was amended, enabling illegally staying third-country nationals to apply for legal aid (section 6C, Amending Law no. 8(I)/2012). However, legal aid is limited to first - instance proceedings and will be granted only if the recourse is deemed to have a reasonable chance of success (sections 6 C (2)(aa) and (bb)). B. Asylum 73. The Cypriot Government assumed responsibility for assessing asylum claims from 1 January 2002. An Asylum Service was established for this purpose in the Migration Department of the Ministry of Interior. Prior to that, the UNHCR dealt with such claims. 74. Asylum seekers can appeal against decisions by the Asylum Service to the Reviewing Authority, which was established by the Refugee Law (Law 6 (I) of 2000, as amended). Procedures before the Asylum Service and the Reviewing Authority are suspensive: asylum seekers have a right under section 8 of the Refugee Law to remain in the Republic pending the examination of their claim and, if lodged, their appeal. Although the authorities retain the power to issue deportation and detention orders against an applicant during this period, such orders can only be issued on grounds which are unrelated to the asylum application, for example, the commission of a criminal offence, and they are subject to the suspensive effect (see the Supreme Court ’ s judgment of 30 December 2004 in the case of Asad Mohammed Rahal v the Republic of Cyprus (2004) 3 CLR 741 ). 75. The decision of the Reviewing Authority can be challenged before the Supreme Court by way of administrative recourse under Article 146 (1) of the Constitution (see paragraphs 6 7-70 above). According to section 8 of the Refugee Law, however, following the decision of the Reviewing Authority, an applicant has no longer the right to remain in the Republic. A recourse does not have automatic suspensive effect ( see paragraph 7 1 above). 76. Finally, section 6B of the Legal Aid Law (Law no. 165(I)/2002 as amended by Amending Law 132(I)/2009), provides that asylum - seekers may apply for legal aid in respect of a recourse brought under Article 146 of the Constitution against decisions by the Asylum Service and the Reviewing Authority. As in the case of deportation and detention (see paragraph 72 above), legal aid will only be granted in respect of the first - instance proceedings (section 6 B (2)(aa)) and if there is a prospect of success (section 6B(2)(bb)). C. Cases relied on by the parties regarding “suspensiveness” and “speediness” in deportation and detention cases 1. Cases relied on by the Government 77. Recourses nos. 382/2011 ( Kazemyan Marvi Behjat v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ), 383/2011 ( Embrahimzadeh Poustchi Omid v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) and 384/2011 ( Bagher Embrahim Zadeh v. the Republic of Cyprus –Director of the Civil Registry and Migration Department and the District Office of Kyrenia ) against deportation and detention orders were lodged before the Supreme Court on 21 March 2011 by a couple and their son. An ex parte application for a provisional order was filed the next day. The hearing of the application took place on 20 April 2011. On that day the complainants agreed to an early hearing of the recourse and withdrew their application as part of an agreement with the Government to have their deportation suspended and have an early hearing of the main proceedings. The cases were then listed for a directions hearing to be held on 2 May 2001. The recourses were eventually withdrawn on 10 June 2011. They lasted two months and twenty days. The complainants were detained throughout this period, until their deportation on 17 July 2011. 78. Recourse no. 601/11 ( Olha Voroniuk v. Minister of the Interior and Director of the Civil Registry and Migration Department ) against deportation and detention orders was lodged on 11 May 2011 along with an application for a provisional order. The application was heard on 1 June 2011 when it was withdrawn after an agreement was reached with the Government. The case was then listed for a clarifications hearing to be held on 29 June 2011. The complainant, however, withdrew the recourse on 28 June 2011 in order to return to her country. The proceedings lasted one month and seventeen days. The complainant was detained throughout this period, until her deportation on 8 July 2011. 79. In recourse no. 439/2009 ( Sima Avani and Maral Mehrabi Pari v. the Republic of Cyprus – 1. Minister of the Interior and Director of the Civil Registry and Migration Department and 2. the Reviewing Authority for Refugees ) lodged on 16 April 2009, it appears that the complainants challenged both the Reviewing Authority ’ s decision and the deportation and detention orders. They also filed an application for a provisional order. Rule 39 was applied by the Court. On 16 April 2009 the Supreme Court granted the provisional order, suspending the complainants ’ deportation. It then gave judgment dismissing the recourse on 27 August 2009, upholding the asylum decision taken by the authorities. The proceedings lasted for four months and eleven days. The complainants were detained throughout this period. They were released on 1 September 2009 and were not detained during the appeal proceedings, which were concluded on 10 October 2011 (Revisional appeal no. 150/09). 2. Cases relied on by the applicant 80. In recourse no. 493/2010 ( Leonie Marlyse Yombia Ngassam v. the Republic of Cyprus - the General Director of the Ministry of the Interior and the Attorney-General of the Republic ) against deportation and detention orders, an application for a provisional order was filed on 21 April 2010. The application was withdrawn following an agreement with the Government. Judgment was given on 20 August 2010. The proceedings therefore lasted three months and twenty-nine days, for the duration of which the complainant remained in detention. 81. In recourse no. 103/2012 ( Amr Mahmoud Youssef Mohammed Gaafar v. the Republic of Cyprus - Director of the Civil Registry and Migration Department and the Minister of the Interior ) the application for a provisional order was filed on 24 January 2012. It was subsequently withdrawn and the Supreme Court gave judgment on 23 July 2012. The proceedings lasted five months and twenty-nine days. The complainant was detained during this period. 82. In recourse no. 1724/2011 ( Mustafa Haghilo v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders, the application for a provisional order was filed on 28 December 2011. The application was subsequently withdrawn and judgment was given on 13 July 2012. The proceedings lasted six months and fifteen days. At the time of the submission of the applicant ’ s observations of 31 July 2012 the appeal proceedings were still pending and the complainant was still in detention. 83. Recourse no. 1723/2011 ( Mohammad Khosh Soruor v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General ) against deportation and detention orders was lodged on 28 December 2011 along with an application for a provisional measure. The application was not withdrawn but was dismissed by the Supreme Court on 8 February 2012. At the time of the submission of the applicant ’ s observations of 31 July 2012 the main proceedings in this recourse were still pending and had up to that date lasted six months and twenty-two days. The complainant was still in detention. 84. In recourse no. 1117/2010 ( Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General) the Supreme Court gave judgment on 23 December 2010, annulling deportation and detention orders issued against the complainant. Following this judgment the authorities issued new deportation and detention orders. A recourse challenging these orders along with an application for a provisional order to suspend deportation were filed on 30 December 2010 (recourse no. 1718/10; Shahin Haisan Fawzy Mohammed v. the Republic of Cyprus – the General Director of the Ministry of the Interior and the Attorney-General). According to the minutes of the proceedings the authorities were notified of the application on 31 December 2010. On 4 January 2011, at the hearing of the application, however, the authorities informed the Court that the complainant had been deported on 2 January 2011. His representative withdrew the application but maintained the recourse. At the time, the complainant ’ s recourse against the Reviewing Authority ’ s decision was still pending before the Supreme Court (recourse no. 1409/2010). D. Detention pending deportation 85. At the material time, Directive 2008 /115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third ‑ country nationals, “the EU Returns Directive”, had not been transposed into Cypriot domestic law. As the deadline for transposition expired on 24 December 2010 (see Article 20 of the Directive) the Directive had direct effect in domestic law and could therefore be relied on by an individual in court (see for example the Supreme Court judgments of 18 January 2011 in the case of Shanmukan Uthajenthiran, habeas corpus application no. 152/2010 and of 20 January 2011, and the case of Irfam Ahmad, habeas corpus application 5/2011). 86. In accordance with Article 15 §§ 5 and 6 of the Directive, detention may be maintained as long as the conditions laid down in subsection 6 are in place, but not longer than six months. Exceptionally, if a deportee refuses to cooperate with the authorities, or there are delays in the obtaining of the necessary travel documents, or the deportee represents a national security or public order risk, detention may be prolonged for a further twelve months, to a maximum of eighteen months (see paragraph 98 below). The Directive has been invoked before the Supreme Court in habeas corpus proceedings in which detainees challenged the lawfulness of their protracted detention for the purpose of deportation (see, for example, Supreme Court judgments of 12 March 2012 in the case of Yuxian Wing, habeas corpus application no. 13/2012; of 8 January 2011 in the case of Shanmukan Uthajenthiran, cited above; and of 22 December 2011 in the case of Mostafa Haghilo, habeas corpus application no. 133/2011). 87. In November 2011, Law no. 153(I)/2011 introduced amendments to the Aliens and Immigration Law with the aim of transposing the “ EU Returns Directive ”. This Law expressly provides that habeas corpus applications before the Supreme Court challenging the lawfulness of detention with a view to deportation can be made on length grounds (for the previous situation, see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011)). E. Relevant Constitutional provisions 88. Part II of the Constitution contains provisions safeguarding fundamental human rights and liberties. Article 11 protects the right to liberty and security. It reads as follows, in so far as relevant: Article 11 “1. Every person has the right to liberty and security of person. 2. No person shall be deprived of his liberty save in the following cases when and as provided by law: ... (f) the arrest or detention of a person to prevent him effecting an unauthorised entry into the territory of the Republic or of an alien against whom action is being taken with a view to deportation or extradition. 3. Save when and as provided by law in case of a flagrant offence punishable with death or imprisonment, no person shall be arrested save under the authority of a reasoned judicial warrant issued according to the formalities prescribed by the law. 4. Every person arrested shall be informed at the time of his arrest in a language which he understands of the reasons for his arrest and shall be allowed to have the services of a lawyer of his own choosing. 5. The person arrested shall, as soon as is practicable after his arrest, and in any event not later than twenty-four hours after the arrest, be brought before a judge, if not earlier released. ... 7. Every person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 8. Every person who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”. F. Other relevant domestic law 1. The Police Law 89. Section 24(2) of the Police Law 2004 (Law no. 73(I)/2004) concerns the general powers and duties of members of the police. It reads as follows: “ It is the duty of every member of the police readily to obey and execute all the orders and warrants which are lawfully issued to him by any competent authority, to collect and transmit information which affects public peace and the security of the Cyprus Republic, to prevent the commission of offences and public nuisance, to discover and bring transgressors to justice and to arrest all persons who he is lawfully authorised to arrest, for the arrest of whom there is a satisfactory ground. ” 90. Section 29(1)(c) and (d) of the Police Law concerns the duty of the police to keep order on public roads. Its reads as follows: “ (1) It is the duty of every member of the police: ... (c) to maintain order on public roads, streets, crossings, in airports and places of disembarkation and in other places of public recreation or places to which the public has access and (d) to regulate movement and the maintenance of order in cases of obstructions on public roads and streets or in other places of public recreation or places to which the public has access. ” 2. The Public Roads Law and the Prevention of Pollution of Public Roads and Places Law 91. Section 3 of the Public Roads Law (Cap. 83 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to place any rubbish or any other matter or thing whatsoever on any public road, or allow any filth, refuse, offensive matter or thing whatsoever to flow or run into or onto it, or intentionally obstruct the free passage of the road (section 3). 92. Section 3(1) of the Prevention of Pollution of Public Roads and Places Law of 1992 (Law no. 19(I)/92 as amended) provides, inter alia, that it is a criminal offence punishable by imprisonment to put, throw, leave, or tolerate or allow the throwing or leaving of, any refuse, waste or filth on a public road or in another public place. 3. The Law on the Rights of Persons who are Arrested and Detained 93. The Law on the Rights of Persons who are Arrested and Detained (Law no. 163(I)/2005) introduced a number of provisions regulating the rights and treatment of arrestees held in custody. It provides, inter alia, for the right of a person who is arrested by the police to a private telephone call to a lawyer of his or her choice immediately after his or her arrest (section 3(1)(a) ). THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 106. Relying on Articles 2 and 3 of the Convention, the applicant complained that if deported to Syria, he would be exposed to a real risk of death or torture or inhuman or degrading treatment. These provisions read as follows: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties ’ submissions 107. The Government submitted that the applicant could no longer claim to be a victim of the alleged violation of Articles 2 and 3 of the Convention as he had been granted refugee status on 29 April 2011 and would therefore not be deported. Accordingly, they invited the Court to declare the applicant ’ s complaints under these provisions inadmissible on this ground. In the alternative, the Government argued that the applicant had failed to exhaust domestic remedies. They noted in this respect that the applicant had not, in the course of his recourse before the Supreme Court, filed an application seeking a provisional order to suspend his deportation. Further, he had not brought a recourse against the deportation and detention orders issued against him. 108. The applicant accepted that he no longer faced a risk of deportation to Syria and the question of violation of Articles 2 and 3 of the Convention taken alone was not as such in issue anymore. He submitted that his recognition as a refugee was in substance an acknowledgment by the Government that his deportation to Syria would have been in violation of these provisions. He stressed, however, that if it had not been for the application of Rule 39 of the Rules of Court by the Court he would have been deported by the authorities. In reply to the Government ’ s plea of non-exhaustion he maintained that he did not have an effective domestic remedy at his disposal as required by Article 35 § 1 of the Convention. In this respect, the applicant pointed out, inter alia, that a recourse against a decision by the Reviewing Authority or against deportation and detention orders did not have automatic suspensive effect. Neither did an application for a provisional measure to suspend deportation made in the context of such proceedings. Lastly, the applicant argued that the scope of the recourse proceedings before the Supreme Court was too limited, as it did not entail an examination of the merits of the administrative decisions concerning asylum and deportation. B. The Court ’ s assessment 1. Victim status 109. The Court reiterates that, as a general rule, a decision or measure favourable to the applicant is not sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, amongst many other authorities, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012; I .M. v. France, no. 9152/09, §§ 94-95, 2 February 2012; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 56, ECHR 2007 ‑ II ). 110. The Court notes that in the present case the applicant, on 29 April 2011, was granted refugee status. The President of the First Section decided to discontinue the application of Rule 39 on this basis. As the applicant is no longer at risk of deportation to Syria, he can no longer claim to be a victim of a violation of his rights under Articles 2 and 3 of the Convention within the meaning of Article 34 of the Convention. It follows that this part of the application must be rejected as being incompatible ratione personae with the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 2. Exhaustion of domestic remedies 111. In view of the above conclusion, the Court does not need to examine the question of exhaustion of domestic remedies raised by the Government. II. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION 112. Relying on Article 13 of the Convention, the applicant complained of the lack of an effective domestic remedy with regard to his complaints under Articles 2 and 3. In particular, he complained that a recourse challenging the decisions of the Reviewing Authority and the deportation and detention orders did not have automatic suspensive effect and did not entail an examination of the merits of the administrative decisions. Article 13 provides as follows: Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 1. The parties ’ submissions 113. Despite the fact that he had been granted refugee status, the applicant considered that the Court should still proceed to examine his complaint under Article 13 of the Convention taken together with Articles 2 and 3. He submitted that he had had an arguable claim under the latter provisions. The authorities ’ decision to grant him refugee status confirmed this. He argued that he could still continue to claim to be a victim of a violation of Article 13 as he never had an effective domestic remedy at his disposal for the violation of his Convention rights. The applicant emphasised that he had not been removed to Syria only because of the interim measure indicated by the Court to the Cypriot Government. 114. The Government did not make any specific submissions on this matter. 2. The Court ’ s assessment 115. Although the respondent State did not raise any objection as to the Court ’ s competence ratione personae, this issue calls for consideration proprio motu by the Court. 116. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce - and hence to allege non-compliance with - the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. However, Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131 ). 117. The Court has refrained from giving an abstract definition of the notion of arguability, preferring in each case to determine, in the light of the particular facts and the nature of the legal issue or issues raised, whether a claim of a violation forming the basis of a complaint under Article 13 is arguable and, if so, whether the requirements of this provision were met in relation thereto. In making its assessment the Court will also give consideration to its findings on the admissibility of the substantive claim (see Ivan Atanasov v. Bulgaria, no. 12853/03, §§ 100-101, 2 December 2010, and Boyle and Rice, cited above, § 54). The fact, however, that a substantive claim is declared inadmissible does not necessarily exclude the operation of Article 13 (see I. M. and Gebremedhin, and, mutatis mutandis, Boyle and Rice, §§ 54 -55; all cited above). 118. More specifically, and of relevance to the present case, in deportation cases the Court has taken the view that loss of victim status in respect of alleged violations of Articles 2 and 3 of the Convention because an applicant was no longer exposed to the threat of deportation did not necessarily render that complaint non-arguable or deprive an applicant of his victim status for the purposes of Article 13. For example, in both the cases of I .M. and Gebremedhin (cited above), although the Court ruled that the applicants could no longer be considered as victims in respect of the alleged violation of Article 3, it found that the main complaint raised an issue of substance and that, in the particular circumstances, the applicants were still victims of the alleged violation of Article 13 taken together with Article 3. The same approach was taken recently by the Court in the case of De Souza Ribeiro in relation to a deportation complaint under Articles 8 and 13 ( De Souza Ribeiro v. France [GC], no. 22689/07, §§ 84 ‑ 100, 13 December 2012, read together with De Souza Ribeiro v. France, no. 22689/07, §§ 22-26, 30 June 2011). 119. In the present case, having examined the case file, the Court considers that the applicant ’ s complaints under Articles 2 and 3 did raise a serious question as to the compatibility of his intended deportation in June 2010 with those provisions. It therefore finds that he can rely on Article 13. The Court observes in this respect that the Reviewing Authority in its decision granting the applicant refugee status held that the applicant had proved, in a convincing manner, that his fear of persecution and the danger to his life in the event of his return to Syria was objectively credible because of his political activity in Cyprus (see, mutatis mutandis, S.F. and Others v. Sweden, no. 52077/10, §§ 68-71, 15 May 2012 on the relevance of sur place activity in the receiving country). 120. In the circumstances, it cannot be said that the applicant can no longer claim to be a victim of the alleged violation of Article 13 taken in conjunction with Articles 2 and 3. Firstly, as in the cases of I .M. and Gebremedhin (both cited above), the facts constituting the alleged violation had already materialised by the time the risk of the applicant ’ s deportation had ceased to exist. The applicant ’ s complaint is that when he was under threat of deportation there was no effective domestic remedy in respect of his complaints under Articles 2 and 3. The Court notes in this regard that at the time the applicant was to be sent back to Syria, his asylum application was being re-examined by the authorities and that it appears from the file that his deportation was halted only because of the application by the Court of Rule 39. The decision granting the applicant refugee status was taken more than ten months after he lodged his complaints before this Court. Secondly, although the authorities ’ decision to grant the applicant asylum has removed the risk that he will be deported, that decision does not acknowledge and redress his claim under Article 13 in conjunction with Articles 2 and 3 about the effectiveness of judicial review proceedings (see paragraphs 109-110 above). It cannot therefore deprive him of his status as a “victim” in respect of his complaint under this head. 121. In the light of the foregoing and given that this complaint is not inadmissible on any other grounds, it must be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 122. The applicant claimed that there was no effective remedy in relation to his complaints under Articles 2 and 3 of the Convention as required by Article 13. Referring to the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ( [GC], no. 30696/09, §§ 288-293, ECHR 2011 ), he argued that the domestic remedies fell short of the requirements of Article 13 enunciated by the Court in its case-law. 123. First of all, a recourse before the Supreme Court against a decision by the Reviewing Authority or deportation and detention orders did not have automatic suspensive effect; nor did the filing of an application for a provisional order. If an application for such an order was filed, whether or not deportation would be suspended boiled down to a matter of practice which rested on the authorities ’ discretion and required a concession on the part of the applicant. Moreover, and contrary to the Government ’ s submissions, the authorities did not always suspend deportation orders. The applicant relied on the court record in a recourse challenging a decision by the Reviewing Authority in a case in which deportation had taken place despite the fact that an application for a provisional order to suspend the execution of the deportation order had been filed. The person concerned had been deported the day before the hearing of the application by the Supreme Court. As a result the application was withdrawn ( Shahin Haisan Fawzy Mohammed, see paragraph 84 above). The applicant also claimed that asylum - seekers faced a number of difficulties in filing applications for provisional orders. Such an order would only be granted on proof of flagrant illegality or irreparable damage. Further, until recently, legal aid was not available either for the institution of a recourse against deportation and detention orders or for an application for a provisional order (see paragraph 7 2 above). 124. Furthermore, although a decision by the Reviewing Authority was subject to judicial review, the Supreme Court could only examine its legality and could not examine the merits of the case. The scope of the Supreme Court ’ s jurisdiction was therefore too limited. Moreover, although it was possible, in view of recent amendments to the relevant domestic legislation, to apply for legal aid when challenging an asylum decision, it was rarely granted. The Supreme Court would only approve an application if it held that the recourse had a reasonable chance of success. It was, however, for the person concerned to establish the likelihood of success, which was a difficult hurdle to surmount since he or she would not have legal representation at that stage. 125. Lastly, the applicant contended that there were significant shortcomings in the asylum procedures before the Asylum Service and the Reviewing Authority. As a result, the examination of asylum requests fell short of the standards required. The applicant referred to reports by, inter alia, local non- governmental organisations [6] and the fourth ECRI report on Cyprus (see paragraph 97 above). (b) The Government 126. The Government submitted that the applicant had had effective domestic remedies in respect of his complaints under Articles 2 and 3 of the Convention as required by Article 13. 127. The Government first pointed out that the applicant had had access to the asylum determination procedure at the Asylum Service and had been able to appeal to the Reviewing Authority. These remedies had suspensive effect. The applicant had then brought a recourse against the decision of the Reviewing Authority. Although these proceedings did not have automatic suspensive effect, in the course of the proceedings the applicant could have filed an application for a provisional order to suspend the execution of the deportation order issued against him. When such an application was filed, the authorities, as a matter of administrative practice, always suspended deportation either until the outcome of the main recourse or until the Supreme Court had reached a decision on the application. If an applicant agreed to an early hearing of the recourse and to withdraw the application for a provisional order, the authorities would suspend deportation for the duration of the entire main proceedings. Otherwise, deportation would be suspended only pending the examination of the application. The Government emphasised that the above practice was uniform and consistent and referred to a number of court records of judicial review proceedings in which both the above scenarios had taken place (see paragraphs 77-79 above). 128. As regards the application for a provisional order, the Government pointed out that in accordance with domestic case-law, the Supreme Court would grant an order if an applicant established the flagrant illegality of the decision taken or that he or she had suffered irreparable damage as a result of the decision. 129. The Government also claimed that the applicant should have brought a recourse challenging the deportation and detention orders issued against him. In such proceedings a provisional order could also be sought for the purpose of suspending deportation. The practice followed was the same as that in a recourse brought against a decision by the Reviewing Authority (see paragraph 12 7 above). 130. In addition, the Government observed that the authorities, as a matter of usual practice, suspended the deportation order of a rejected asylum seeker if there were medical, family or humanitarian reasons for doing so. Additionally, before the execution of a deportation order, the authorities examined ex proprio motu whether there were reasons to believe that a rejected asylum seeker ’ s deportation would give rise to a real risk that he or she would be subjected to treatment in breach of Articles 2 and 3 of the Convention. The authorities also examined and decided any claim for suspension of the execution of the deportation irrespective of whether a recourse had been filed. 2. The Court ’ s assessment 131. The Court has already found that the applicant ’ s complaints under Articles 2 and 3 of the Convention are arguable and that the applicant can still claim to have been entitled to a remedy in that respect (see paragraphs 119 -1 21 above). 132. The notion of an effective remedy under Article 13 in this context requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see M. and Others v. Bulgaria, no. 41416/08, § 129, 26 July 201 1; Salah Sheekh v. the Netherlands, no. 1948/04, § 153, 11 January 2007; and Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002 ‑ I ). 133. In cases concerning the expulsion of asylum-seekers the Court has explained that it does not itself examine the actual asylum applications or verify how the States honour their obligations under the Geneva Convention. Its main concern is whether effective guarantees exist that protect the applicant against arbitrary refoulement, be it direct or indirect, to the country from which he or she has fled (see M.S.S., cited above, § 286) or to any other receiving country in which he or she would be at a real risk of suffering treatment in violation of Article 3 (see, for example in the specific context of the application of the Dublin Regulation, M.S.S., cited above, §§ 342 et seq ). Where a complaint concerns allegations that the person ’ s expulsion would expose him or her to a real risk of treatment contrary to Article 3 of the Convention, the effectiveness of the remedy for the purposes of Article 13 imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005 ‑ III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000 ‑ VIII ), as well as a particularly prompt response (see De Souza Ribeiro, cited above, § 82 ). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see, inter alia, De Souza, cited above, § 82, 1 3 December 2012; I.M. v. France, cited above, § 58; Al Hanchi v. Bosnia and Herzegovina, no. 48205/09, § 32, 15 November 2011; Auad v. Bulgaria, no. 46390/10, § 120, 11 October 2011; Diallo v. the Czech Republic, no. 20493/07, § 74, 23 June 2011; M.S.S. , cited above, § 293; Baysakov and Others v. Ukraine, no. 54131/08, § 71, 18 February 2010; Abdolkhani and Karimnia v. Turkey, no. 30471/08, § 108, 22 September 2009; and Gebremedhin, cited above, § 66 ). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right safeguarded by Article 2 of the Convention. 134. Turning to the present case, the Court notes that the applicant ’ s asylum application and appeal thereto were initially rejected by the Cypriot authorities. His file, however, was subsequently re-opened for re ‑ examination in view of new information put forward by the applicant (see paragraph 17 above). When the first set of deportation and detention orders were issued on 11 June 2010 on the ground that the applicant was in Cyprus unlawfully, these proceedings were still pending (see paragraphs 17-22 above). Even though it appears that an internal note had been prepared a few days before by an officer of the Asylum Service with a negative proposal, no formal decision had been taken at this stage (see paragraph 18 above). The Reviewing Authority gave its decision on 30 September 2010 after having taken up the matter from the Asylum Service (see paragraph 22 above). The Court notes in this connection that under domestic law, proceedings before the Asylum Service and the Reviewing Authority are suspensive in nature. Consequently, as admitted by the Government in their observations of 20 September 2011 (see paragraph 182 below) a mistake had been made by the authorities as, at the time, the applicant had been in Cyprus lawfully. He should not, therefore, have been subject to deportation. 135. The Government argued that the applicant should have lodged a recourse with the Supreme Court seeking the annulment of the deportation orders and that he should have applied for a provisional order to suspend his deportation in the context of those proceedings. The Court observes, however, that neither a recourse against deportation and detention orders, nor an application for a provisional order in the context of such proceedings, has automatic suspensive effect. Indeed, the Government have conceded this. 136. The Government emphasised that an application for a provisional order was suspensive “in practice”. In particular, as a matter of administrative practice, the authorities refrained from removing the person concerned until a decision had been given by the Supreme Court on the application or, in the event of an agreement being reached between the parties entailing the withdrawal of the application and an early hearing, until the end of the main proceedings. 137. The Court reiterates, however, that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. This is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention (see, mutatis mutandis, Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). The Court has, therefore, rejected similar arguments put before it in other cases concerning deportation advocating the sufficiency of a suspensive effect in “practice” (see, for example, Gebremedhin, § 66; and Čonka, §§ 81-83 both cited above). It has further pointed out the risks involved in a system where stays of execution must be applied for and are granted on a case-by-case basis (see Čonka, cited above, § 82). 138. Given the above, the applicant cannot be found to be at fault for not having brought such proceedings (see, mutatis mutandis, Diallo, cited above, § 78). 139. The Court further points out that the deportation and detention orders were obviously based on a mistake made by the authorities. Since the applicant ’ s asylum application was being re-examined, he continued to have the benefit of suspensive effect ( see paragraphs 74, 127 and 134 above). Yet, despite this the orders against the applicant continued to remain in force for more than two months, during which the re-examination of his asylum claim was still taking place, and the applicant was not removed to Syria during this period solely because of the application of Rule 39. No effective domestic judicial remedy was available to counter this error. Moreover, the Court notes the lack of any effective safeguards which could have protected the applicant from wrongful deportation at that time. 140. The Court also observes that the deportation and detention orders of 11 June 2010 were subsequently annulled by the authorities and were replaced on 20 August 2010 by new orders issued on different grounds (see paragraph 48 above). Likewise, these too could not be executed until the re ‑ examination of his asylum claim by the authorities had been completed (see the judgment of the Supreme Court in Asad Mohammed Rahal, paragraph 74 above). Following the Reviewing Authority ’ s decision of 30 September 2010, however, the applicant was no longer authorised to remain in the country. Although the applicant filed a recourse before the Supreme Court against that decision, those proceedings were not automatically suspensive. Furthermore, in so far as the Government argue that the applicant should have filed an application for a provisional order to suspend his deportation in the course of those proceedings, the Court has already found that such an application does not have automatic suspensive effect (see paragraph 135 above). A recourse against the new orders would also suffer from the same shortcoming. As a result, the applicant could have been removed before the Supreme Court reached a decision on the matter. 141. The Court concludes therefore that the applicant did not have an effective remedy in relation to his complaint under Articles 2 and 3 of the Convention. 142. There has therefore been a violation of Article 13 of the Convention. 143. In view of the above conclusion, the Court does not need to examine the applicant ’ s remaining complaint under this head concerning the scope of judicial review proceedings. III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 144. The applicant complained that he did not have an effective remedy at his disposal to challenge the lawfulness of his detention. He relied on Article 5 § 4 of the Convention, which provides as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 145. The Government contested that argument. A. Admissibility 146. The Government submitted that the applicant had not exhausted domestic remedies as he had failed to lodge a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him. 147. The applicant submitted in reply that this remedy was incompatible with Article 5 § 4 both in terms of “speediness” and scope. 148. The Court finds that the issue raised by the Government ’ s plea of non- exhaustion of domestic remedies in reality goes to the merits of Article 5 § 4, namely, whether or not the applicant had at his disposal during his detention a remedy which would have provided him with an adequate and speedy judicial review of the lawfulness of his detention. The Court will therefore address this issue when examining the substance of the applicant ’ s complaint under this provision. 149. It further notes that the applicant ’ s complaint is not manifestly ill- founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 150. The applicant submitted that there were no effective domestic remedies complying with the requirements of Article 5 § 4 of the Convention. First of all, he claimed that recourse proceedings before the Supreme Court against deportation and detention orders were excessively long and did not respect the requirement of speediness. In this connection, the applicant maintained that the average time for a recourse was one and a half to two years at first instance and three to four years on appeal. The applicant criticised the data provided by the Government, arguing that there was no information concerning the methodology used to calculate the average length of such proceedings. In particular, the Government had omitted to explain whether the average length of eight months provided in the data only concerned recourses which followed their normal course, or also recourses which were eventually withdrawn or in which an application for a provisional order had been filed and then withdrawn in exchange for an “accelerated” procedure. Further, the Government had failed to provide data on the length of appeal proceedings. In this respect, the applicant asserted that there was a significant delay in the examination of appeals. He noted that he had managed to find four cases in which appeal proceedings had been decided between 2008 and 2011, the average length of which had been three years. The applicant admitted, however, that he was not in a position to say whether the persons concerned had remained in detention during that period. 151. As to the examples of recourses relied on by the Government (see paragraphs 77-79 above), the applicant submitted that these did not give an accurate picture of the situation. Four out of the five recourses had been eventually withdrawn by the persons concerned. The remaining one mainly concerned the lawfulness of the Reviewing Authority ’ s decision and not of the deportation and detention orders (see paragraph 7 9 above). A further three of the recourses could not be considered as separate cases as they involved members of the same family and had been jointly examined. 152. The applicant also referred to four recourses in which the persons concerned had submitted an application for a provisional order and then withdrawn it in exchange for what the Government had claimed to be a speedy procedure. In these cases, the recourses had not been withdrawn and the duration of the proceedings ranged from approximately four months to over six months (see paragraphs 80-83 above). 153. The applicant submitted that it was not reasonable to expect applicants in detention and deportation cases, with no means of subsistence, to have to lodge an ex parte application for a provisional order on top of a recourse, only to subsequently withdraw it in order to secure suspension of their deportation and a speedy determination of the legality of the deportation and detention orders. The applicant pointed out in this respect that there were practical difficulties associated with filing ex parte applications in deportation cases. 154. The applicant also challenged the remedy in terms of its accessibility. First of all, the letters sent out by the authorities notifying the issuance of the deportation and detention orders made no mention of the remedies available to challenge their lawfulness. Secondly, although it was possible in view of recent amendments to the relevant domestic legislation to apply for legal aid in deportation and detention cases, this was, as in asylum cases, rarely granted (see paragraphs 72, 76 and 124 above). 155. Besides these difficulties and the lack of speediness, the applicant argued that a recourse under Article 146 of the Constitution was also deficient in scope, as the Supreme Court ’ s jurisdiction was limited to examining the legality of the case and not its substance. Consequently, even if successful, this procedure was not always capable of leading to the release of the person concerned. The applicant explained that in the event of an annulment by the Supreme Court of deportation and detention orders, the authorities would simply issue new deportation and detention orders, taking care to ensure that they did not commit the same errors, and the detention would continue on the basis of the new orders. A fresh recourse would then have to be filed against the new decision. 156. The applicant went on to stress that the domestic law did not provide for periodic review of detention for the purpose of deportation. Once deportation and detention orders were issued they were only subject to judicial review by the Supreme Court through the Article 146 procedure. A habeas corpus application could only be brought in order to challenge the lawfulness of detention in terms of its length. Although the applicant had used this remedy, he had been unsuccessful (see paragraphs 50-55 above). Referring to his habeas corpus application, the applicant, in his observations of 12 August 2012, complained that these proceedings did not comply with the requirements of Article 5 § 4. 157. Finally, the applicant referred to the recent report by Amnesty International on the detention of migrants and asylum seekers in Cyprus, (see paragraphs 100-104 above). (b) The Government 158. For their part, the Government submitted that the applicant had had an effective procedure at his disposal through which he could have obtained his speedy release. In particular, the applicant could have lodged a recourse under Article 146 of the Constitution challenging the lawfulness of the decision to detain and deport him. If he had succeeded, the relevant order would have been annulled and he would have been released. The applicant could also have filed, in the context of the recourse, an application for a provisional order seeking the suspension of his deportation. If the applicant had taken these steps he could have been released quickly. In this respect, the Government repeated their submissions under Article 13 of the Convention that, as a matter of administrative practice, if the applicant had agreed to an early hearing of the recourse and withdrawn his application for a provisional order, the authorities would have suspended the execution of the deportation order and the proceedings would have been expedited (see paragraphs 127-129 above). The lawfulness of the deportation and detention orders would have been adjudicated in a matter of weeks. The Government referred to the records of the proceedings in a number of recourses as examples of expedited judicial review proceedings (see paragraphs 77-79 above). 159. The Government also submitted that according to official data the average length of first-instance proceedings in recourses against deportation and detention orders in the years 2010 and 2011 had been eight months. However, no data were available concerning appeal proceedings as, according to the Supreme Court registry records, only two appeals had been lodged during these two years. One had been withdrawn and one was still pending. 2. The Court ’ s assessment (a) General principles 160. Article 5 § 4 entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 168, ECHR 2012 ). The remedies must be made available during a person ’ s detention with a view to that person obtaining speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release (see Louled Massoud v. Malta, no. 24340/08, § 39 July 2010 ). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see Čonka, cited above, §§ 46 and 55). The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, amongst many authorities, Nasrulloyev v. Russia, no. 656/06, § 86, 11 October 2007, and Kadem v. Malta, no. 55263/00, § 41, 9 January 2003). 161. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 with further references). 162. Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of the detention and ordering its termination if it proves unlawful (see Sarban v. Moldova, no. 3456/05, § 118, 4 October 2005, and Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000 ‑ III ). The Court has laid down strict standards in its case-law concerning the question of State compliance with the speed requirement. In the cases of Sarban and Kadem (both cited above) and Rehbock v. Slovenia ( no. 29462/95, § 84, ECHR 2000-XII ), for example, the Court considered that time ‑ periods of twenty-one, seventeen and twenty-three days, respectively, were excessive. 163. The question whether the right to a speedy decision has been respected must – as is the case for the “reasonable time” stipulation in Articles 5 § 3 and 6 § 1 of the Convention – be determined in the light of the circumstances of each case (see Rehbock, cited above; G.B. v. Switzerland, no. 27426/95, § 33, 30 November 2000; and M.B. v. Switzerland, no. 28256/95, § 37, 30 November 2000 ). An applicant, however, will not be required to pursue a particular remedy where the Court finds from the information and submissions before it that it would not have ensured a speedy review of his or her detention (see, for example, Louled Massoud, cited above, §§ 44-45, 27 July 2010, and Sabeur Ben Ali v. Malta, no. 35892/97, § 40, 29 June 2000). (b) Application to the present case 164. Turning to the present case, the Court observes at the outset that the fact that the applicant was released on 3 May 2011 upon being granted refugee status does not render his complaint under this provision devoid of purpose bearing in mind that he was detained for more than ten months (see inter alia, Sadaykov v. Bulgaria, no. 75157/01, § 33, 22 May 2008; Čonka, cited above, § 55, in limine; and Louled Massoud, § 14, cited above; see also, mutatis mutandis, Kormoš v. Slovakia, no. 46092/06, §§ 93-94, 8 November 2011 ). 165. The Court notes that under domestic law, the lawfulness of deportation and detention can only be examined in the context of a recourse brought under Article 146 of the Constitution within the required time- limit (see paragraphs 67-70 above). The Court has already examined the effectiveness of this remedy in so far as deportation is concerned for the purposes of Article 13 taken together with Articles 2 and 3. It must, however, now consider in so far as detention is concerned whether it meets the requirements of Article 5 § 4 of the Convention. 166. The applicant did not make use of this remedy to challenge the detention orders issued against him as he claimed that it was deficient in speed and scope for the purposes of Article 5 § 4. 167. As regards the requirement of “speediness”, the Court notes that according to the Government ’ s submissions the average length of a recourse challenging the lawfulness of a detention order, as also, at the same time, of a deportation order, is eight months at first instance (see paragraph 159 above). This is undoubtedly far too long for the purposes of Article 5 § 4. 168. The Court has also examined the examples relied on by the Government in support of their contention that such proceedings can be expedited. These, however, are not at all satisfactory, even though the proceedings were of a lesser duration than the average given. The Court observes in this connection that the shortest time taken for the proceedings in these examples lasted one month and seventeen days and two months and twenty days respectively (see paragraphs 77-78 above). These periods are still excessive, bearing in mind the strict standards set down by the Court in its case-law (see paragraph 162 above) and the fact that they ended due to a withdrawal of the recourse by the persons concerned, without judgment having been given on the lawfulness of the decisions to deport and detain them. Not even one hearing had been held within the respective periods. The Court also notes that the applicants in these cases had to reach an agreement with the Government in order to expedite the proceedings. The Court reiterates in this respect that under Article 5 § 4 of the Convention the existence of domestic remedies must be sufficiently certain ( see paragraph 160 above) and that “speediness” is an indispensable requirement of that provision, which does not depend on the parties reaching an agreement in the proceedings. 169. In view of the above considerations, the Court finds that pursuing a recourse would not have provided the applicant with a speedy review of the lawfulness of the decision to detain him, as required by Article 5 § 4 of the Convention. It is therefore unable to agree with the Government that the applicant should have tried that remedy. 170. Accordingly, the Court concludes that there has been a violation of Article 5 § 4 of the Convention. 171. Having regard to this finding, the Court does not consider it necessary to examine the remainder of the applicant ’ s complaints concerning the judicial review proceedings (see paragraphs 154-155 above) and those subsequently raised in his observations in relation to the habeas corpus proceedings (see paragraph 156 above). IV. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 172. The applicant further complained that his detention had been unlawful and therefore in breach of Article 5 § 1 (f) of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. The parties ’ submissions 1. The applicant 173. The applicant submitted that his detention from 11 June 2010 until 3 May 2011 had been arbitrary and contrary to Article 5 § 1 (f) of the Convention. First of all, he had been arrested on the above-mentioned date without a warrant even though he had not been arrested for committing a flagrant offence. Although the authorities claimed that the protesters, including the applicant, had committed a number of offences under, for example, the Public Roads Law, they had not arrested them on such grounds. Further, the authorities did not know at the time the names and particulars of the protesters and could not therefore have known whether they had been staying in Cyprus unlawfully. Consequently, until the deportation and detention orders were issued against him, his arrest and detention had not been in conformity with the procedural requirements of domestic law and Article 11 (3) of the Constitution (see paragraph 88 above). The applicant noted in this respect that in the light of the Government ’ s observations it was not at all clear on what grounds he had actually been arrested and detained during this period. 174. Secondly, the authorities had proceeded to issue deportation and detention orders against him under the Aliens and Immigration Law on the basis that he was an unlawful immigrant. Yet, according to the domestic law, the applicant had been lawfully residing in Cyprus as his asylum application was still pending with the Reviewing Authority. In fact, the decision of the Reviewing Authority had been taken on 30 September 2010, that is, more than three months after his arrest. Nonetheless, the applicant had been kept in detention throughout this period. 175. Thirdly, the new orders issued by the authorities on 20 August 2010 on public order grounds had been completely unjustified. The Government pleaded that the applicant had been dangerous to the public order and the security of the Republic but did not put forward any justification or evidence in this respect. In the applicant ’ s view the authorities had acted in bad faith and/or on the basis of misinformation. Furthermore, those orders had never been communicated to the applicant in accordance with section 14 (6) of the Aliens and Immigration Law. The applicant found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of these orders ( see paragraphs 47 -48 above). 176. Even assuming, however, that his detention had been compatible with the domestic law, the applicant considered that it had ceased to be so because of its excessive duration. Unlike in the case of Chahal v. the United Kingdom (15 November 1996, Reports 1996 ‑ V), the length of detention in his case could not be justified on the basis of any exceptional circumstances. The authorities had not been able to deport the applicant only because of the Court ’ s interim measure. In addition, the maximum period of detention of six months, provided for in Directive 2008/115/ EC (see paragraphs 86 and 9 8 above) which had been directly applicable in domestic law, had elapsed. Despite this the authorities had continued to detain him. In the applicant ’ s view, his continued detention could only be considered as a form of punishment. The authorities could have released him and granted him a temporary residence permit on humanitarian grounds pending the examination of his case both domestically and by the Court. 2. The Government 177. The Government submitted that an unacceptable situation had been created by the protesters on one of the busiest streets of Nicosia, on which office blocks and public buildings were situated. It posed a risk to the health of both the public and the protesters themselves, it obstructed the free passage of traffic and pedestrians, it caused a public nuisance and it created a risk of spreading disease to members of the public who worked and lived in the area and who had complained to the authorities. The protesters had refused to co-operate with the authorities and efforts to persuade them to leave had been to no avail. 178. There had been two avenues open to the authorities: either to arrest the protesters for a number of flagrant criminal offences committed at the place of protest and punishable by imprisonment, for example, under the Public Roads Law (Cap. 83, as amended) and the Prevention of Pollution of Public Roads and Places Law (Law 19 (I)/92, as amended) (see paragraphs 91-92 above), or to take measures to peacefully remove the protesters. They had opted for the latter course of action in order to avoid a risk of a violent reaction or clashes and to enable a careful examination of the immigration status of each protester. It would have been impossible for the police to do an on-the-spot check. In taking their decision the police had also considered that there were women and children among the protesters. 179. The Government noted that on 11 June 2010 the police, in removing the protesters, including the applicant, had acted in the exercise of their duties under the Police Law (Law no. 73(I)/2004 as amended) in order to, among other things, prevent the commission of criminal offences and public nuisance, maintain order on public roads, streets, passages and places to which the public had access and regulate the maintenance of order in cases of obstruction of public roads and streets and other places to which the public had access (sections 24(2) and 29(1)(c) and (d) of the Law, see paragraphs 89-90 above). The aim of the police had been to remove the protesters peacefully and transfer them to the ERU headquarters in order to question them for the purpose of ascertaining their names and status and, in particular, to identify those whose asylum applications had been rejected and who were unlawfully residing in the Republic. The Government considered that it had been completely legitimate, in the course of an operation for the removal of the protesters from the street, to also try to identify any Kurds from Syria who had been staying in the Republic unlawfully following the rejection of their asylum applications. 180. The Government emphasised in this regard that neither the applicant nor the other protesters had been deprived of their liberty when they had been removed from the street and taken to the ERU headquarters along with the other protesters. Nor had they been deprived of their liberty at the headquarters during the examination of their papers for the purpose of determining their immigration status. The authorities had transferred the protesters, including the applicant, to the ERU headquarters for identification purposes and not to arrest and detain them (relying on X. v Germany, no. 8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) vol. 24, p. 158). They had not been kept in cells, they had not been handcuffed and they had been given food and drink. Those who had been identified as being lawfully resident in the Republic had gone home. The rest had been arrested. The applicant ’ s detention had commenced once he had been charged with the flagrant criminal offence of unlawful stay in the Republic and arrested on this ground. 181. In this connection, in their first set of observations to the Court dated 3 June 2011, the Government maintained that the applicant ’ s arrest and detention on the ground of unlawful stay had been lawful as it had been in conformity with domestic law and procedure. The applicant had been arrested on the ground that he had been a “prohibited immigrant” staying in the Republic unlawfully after the rejection of his asylum application. They noted in this respect that the criminal offence of unlawful stay was a flagrant offence punishable by imprisonment under section 19 (2) of the Aliens and Immigration Law. Article 11 (4) of the Constitution permitted arrest without a warrant for flagrant offences carrying a term of imprisonment. The deportation and detention orders had been issued on the same day, before the lapse of the twenty-four hour time-limit set by Article 11 (5) of the Constitution. His detention had continued on the basis of these orders for the purpose of effecting his deportation. 182. In their subsequent observations of 20 September 2011, however, the Government admitted that a mistake had been made with regard to the applicant. As his asylum application had been pending with the authorities at the time, the applicant had in fact at the time of his arrest been legally residing in the Republic. 183. The Government made no submissions, further to their letter of 12 October 2010 ( see paragraph 47 above), with regard to the new deportation and detention orders issued against the applicant on 20 August 2010 and his continued detention on that basis. They did not comment on whether the applicant had been given notice of those orders either. B. The Court ’ s assessment 184. The Court notes that the applicant ’ s complaint under Article 5 § 1 of the Convention can be divided into three parts that require separate examination: - the first part concerns his transfer, along with the other protesters, to the ERU headquarters on 11 June 2010 and his stay there pending his identification; - the second part concerns his detention on the basis of the deportation and detention orders issued against him on 11 June 2010 under section 6(1)(k) of the Aliens and Immigration Law; and - the third part concerns his detention on the basis of the deportation and detention orders issued against him on 20 August 2010 under section 6(1)(g) of the Aliens and Immigration Law. 1. The applicant ’ s transfer to and stay at the ERU headquarters on 11 June 2010 (a) Admissibility 185. The Court notes that the parties disagree on whether or not the applicant ’ s situation during this period amounted in practice to a deprivation of liberty. The Government dispute the applicant ’ s arguments and, hence, the applicability of Article 5 § 1 of the Convention to this period. 186. Article 5 § 1, which proclaims the “right to liberty”, is concerned with a person ’ s physical liberty. Its aim is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion. In determining whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting -point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance (see, amongst many authorities, Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 57, 15 March 2012; Stanev, cited above, § 115, 17 January 2012; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010; and Guzzardi v. Italy, 6 November 1980, §§ 92- 93). It is clear that the question whether there has been a deprivation of liberty is very much based on the particular facts of a case (see, for example, Austin, § 61, cited above). 187. In determining whether or not there has been a violation of Convention rights it is often necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( for example, in relation to Article 5 § 1, see, Creangă v. Romania [GC], no. 29226/03, § 91, 23 February 2012 and Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50). The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court ’ s conclusion as to the existence of a deprivation of liberty. 188. The Court notes that in cases examined by the Commission, the purpose of the presence of individuals at police stations, or the fact that the parties concerned had not asked to be allowed to leave, were considered to be decisive factors. Thus, children who had spent two hours at a police station in order to be questioned without being locked up were not found to have been deprived of their liberty (see X. v. Germany, no 8819/79, cited above) nor was an applicant who had been taken to a police station for humanitarian reasons, but who was free to walk about on the premises and did not ask to leave (see Guenat v. Switzerland (dec.), no. 24722/94, Commission decision of 10 April 1995). Likewise, the Commission attached decisive weight to the fact that an applicant had never intended to leave the courtroom where he was taking part in a hearing (see E.G. v. Austria, no. 22715/93, Commission decision of 15 May 1996). 189. The case-law has evolved since then, as the purpose of measures taken by the authorities depriving applicants of their liberty no longer appears decisive for the Court ’ s assessment of whether there has in fact been a deprivation of liberty. To date, the Court has taken this into account only at a later stage of its analysis, when examining the compatibility of the measure with Article 5 § 1 of the Convention (see Creangă, § 93, cited above; Osypenko v. Ukraine, no. 4634/04, §§ 51-65, 9 November 2010; Salayev v. Azerbaijan, no. 40900/05, §§ 41-42, 9 November 2010; Iliya Stefanov v. Bulgaria, no. 65755/01, § 71, 22 May 2008; and Soare and Others v. Romania, no. 24329/02, § 234, 22 February 2011). 190. Furthermore, the Court reiterates its established case-law to the effect that Article 5 § 1 may also apply to deprivations of liberty of a very short length (see, among many authorities, Brega and Others v. Moldova, no. 61485/08, § 43, 24 January 2012; Shimovolos v. Russia, no. 30194/09, §§ 48-50, 21 June 2011; Iskandarov v. Russia, no. 17185/05, § 140, 23 September 2010; Rantsev v. Cyprus and Russia, no. 25965/04, § 317, ECHR 2010 (extracts); and Foka v. Turkey, no. 28940/95, § 75, 24 June 2008). 191. Turning to the facts of the present case, the Court observes that according to the available information a large-scale operation was carried out on 11 June 2010 at 3 a.m. involving about 250 police officers, in order to remove the protesters from the place of protest (see paragraph 36 above). The applicant and another 148 protesters were boarded on buses and taken to the ERU headquarters where they remained for a number of hours pending their identification and ascertainment of their immigration status. 192. The Court first notes in this respect that in contrast to the exceptional circumstances examined by the Court in Austin (cited above, §§ 66 and 68), there is no evidence in the instant case that the police were faced, at the place of protest, with a volatile or dangerous situation that gave rise to a real and immediate risk of violent disorder or serious injury to persons or property. 193. Second, although it appears that there was no resistance on the part of the protesters, it cannot be said that they had in the circumstances a real choice and that they boarded the buses and remained on the police premises voluntarily. The Court notes in this respect that the operation took place at 3 a.m., at a time when the majority of the protesters were sleeping (see paragraph 36 above). Bearing in mind the nature, scale and aim of the operation, the manner in which it was carried out and the overall measures taken by the authorities, it would be unrealistic to assume that the protesters were free to refuse to board the buses or to leave the police headquarters. Nor have the Government indicated that they were. It is clear that the aim of the operation was also to identify the protesters who were staying in the country unlawfully with a view to deporting them. Only those who were found to be lawfully residing in Cyprus were able to leave the premises. There was undoubtedly an element of coercion, which in the Court ’ s view is indicative of a deprivation of liberty within the meaning of Article 5 § 1. The fact that nobody had been handcuffed, put in cells or otherwise physically restrained during the period in question does not constitute a decisive factor in establishing the existence of a deprivation of liberty ( see I.I. v. Bulgaria, no. 44082/98, § 87, 9 June 2005, and Osypenko, cited above, § 32). 194. The Court also refers, in this respect, to the instructions received by the police to use “discreet methods of arrest ” (see paragraph 31 above). 195. In these circumstances the Court considers that the applicant ’ s transfer to and stay in the ERU headquarters during this period amounted to a de facto deprivation of liberty within the meaning of Article 5 § 1 and that this provision applies to his case ratione materiae. 196. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits 197. The Court must now determine whether the applicant ’ s detention was compatible with Article 5 § 1. It reiterates that in order to comply with this provision, the detention in issue must first of all be “lawful”. This must include the observance of a procedure prescribed by law. In this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see Benham v. the United Kingdom, 10 June 1996, § 40, Reports 1996 ‑ III ). However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion. 198. The Court must, moreover, ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application (see Zervudacki v. France, no. 73947/01, § 43 and Baranowski v. Poland, §§ 50 ‑ 52, cited above ). 199. In the present case, the Government have submitted that the applicant, along with the other protesters, was not deprived of his liberty during this period (see paragraph 180 above). It appears that for this reason, although they have given explanations for the actions of the authorities, they have not relied on any particular provision as a legal basis for the deprivation of liberty. 200. In this particular regard, the Government have submitted that the authorities opted for the peaceful removal of the protesters and that the police acted in exercise of their duties under the Police Law in order to, inter alia, prevent the commission of certain criminal offences and public nuisance and to maintain order on public roads and in public areas (see paragraphs 89-90 above). The specific provisions referred to by the Government concern the powers and duties of police officers to arrest people they are lawfully authorised to arrest and their duty to preserve order on public roads and to regulate movement, but it has not been claimed that any of these powers were actually used to effect the arrest of the applicant and the other protesters. 201. At the same time, the Government submitted that the operation also aimed to identify the protesters and ascertain their legal status. The authorities suspected that a number of the protesters were failed asylum seekers and, therefore, “ prohibited immigrants ”, but considered that it would have been impossible to carry out an effective on-the-spot inquiry without provoking a violent reaction. Consequently, all the protesters were taken to the ERU headquarters for identification purposes and to determine whether or not they were unlawful immigrants. The Government have not, however, acknowledged that there was a deprivation of liberty on this ground. 202. The Court is conscious of the difficult situation that the Cypriot authorities found themselves in and that an operational decision had to be taken. This, however, cannot justify the adoption of measures giving rise to a deprivation of liberty without any clear legal basis. 203. It follows that the applicant ’ s deprivation of liberty during this period was contrary to Article 5 § 1 of the Convention. There has, therefore, been a violation of this provision. 2. The applicant ’ s detention on the basis of the deportation and detention orders issued on 11 June 2010 and 20 August 2010 (a) Admissibility 204. The Court notes that it is not disputed that the applicant was deprived of his liberty from 11 June 2010 until 3 May 201 1 on the basis of deportation and detention orders issued under the Aliens and Immigration Law. 205. The Court further notes that the applicant ’ s complaints under this head are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. (b) Merits 206. The Court is satisfied that the applicant ’ s deprivation of liberty from 11 June 2010 to 3 May 2011 fell within the ambit of Article 5 § 1 (f) of the Convention as he was detained for the purpose of being deported from Cyprus. This provision does not require that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c) (see Chahal §§ 112-113 and Čonka, § 38, both cited above). All that is required under this provision is that “action is being taken with a view to deportation”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel can be justified under national or Convention law (see Chahal, cited above, § 112). 207. The Court notes that Cypriot law allows for the possibility of detention with a view to deportation. The Court observes in this respect that both the decisions of 11 June and 20 August 2010 ordering the applicant ’ s detention and deportation were based on section 14 of the Aliens and Immigration Law, which permits the Chief Immigration Officer to order the deportation of any alien who is a prohibited immigrant and his or her detention in the meantime (see paragraph 63 above). 208. It follows that the issue to be determined is whether the applicant ’ s detention under that provision was “lawful”, including whether it complied with “a procedure prescribed by law” ( see paragraphs 197-198 above). i. The applicant ’ s detention between 11 June and 20 August 2010 on the basis of the deportation and detention orders of 11 June 2010 209. The Court notes that the applicant was charged on 11 June 2010 with the offence of unlawful stay and was detained, on the basis of deportation and detention orders issued on the same day, for a total of two months and nine days. These orders had been issued pursuant to section 6(1)(k) of the Aliens and Immigration Law on the ground that the applicant was a “ prohibited immigrant ” staying in the Republic unlawfully. However, it is clear from the information before the Court that this was not the case as, at the time, the re-examination of the applicant ’ s asylum application was still pending. Indeed, the Government admitted in their observations of 20 September 2011 that the applicant had been legally residing in the Republic and that a mistake was made by the authorities. 210. In these circumstances, the Court finds that during this period the applicant was unlawfully deprived of his liberty. There has therefore been a violation of Article 5 § 1 of the Convention. ii. The applicant ’ s detention between 20 August 2010 and 3 May 2011 on the basis of the deportation and detention orders of 20 August 2010 211. By a letter dated 12 October 2010, the Government informed the Court that on 17 August 2010 the Minister of Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law, on the basis of information that he had been involved in activities relating to the receipt of money from prospective Kurdish immigrants in exchange for securing residence and work permits in Cyprus. Deportation and detention orders had then been issued on 20 August 2010 on the basis of the above provision and the previous orders of 11 June 2010 were annulled (see paragraphs 47-48 above). The applicant was therefore detained on the basis of these orders for another eight months and twelve days until his release on 3 May 2011. The applicant, however, claims that the orders had not been communicated to him in accordance with domestic law and that he had found out about the decision of the Minister of the Interior following an exchange of information between the parties in the context of the Court proceedings. 212. The Court first observes that there does not appear to have been any follow-up to the allegations against the applicant so as to lend support to what was imputed to him. 213. Secondly, the Court notes that, according to section 14(6) of the Aliens and Immigration Law, a person against whom a detention and/or deportation order has been issued shall be informed in writing, in a language which he understands, of the reasons for the decision unless this is not desirable on public-security grounds (see paragraph 63 above). This provision affords certain minimum guarantees to persons against whom a decision to deport and/or detain has been taken (see the Supreme Court ’ s judgments in Uros Stojicic and Kamran Sharajeel, paragraph 64 above ). 214. The Government, on 12 October 2010, provided the Court with a copy of the deportation and detention orders, which were written in Greek. However, they have not submitted any evidence that the applicant was notified by the authorities of the issuance of these orders and the new grounds for his detention. Indeed, the Government have not made any submissions on this matter. 215. Consequently, in the absence of any evidence or explanation by the Government to the contrary, the Court finds that the applicant was not given notice of the new deportation and detention orders in accordance with section 14(6) of the Aliens and Immigration Law. Although section 14(6 ) provides an exception to this rule on public-security grounds, the Government have not pleaded this as a reason for not communicating the orders to the applicant. Nor can it be said, on the basis of the file in any event, that there was a potential public-security issue. 216. The Court therefore finds that the procedure prescribed by law was not followed (see Voskuil v. the Netherlands, no. 64752/01, §§ 81-83, 22 November 2007). There has accordingly also been a violation of Article 5 § 1 of the Convention in so far as this period of detention is concerned. C. Overall conclusion 217. The Court finds a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s entire period of detention, namely, from 11 June 2010 until 3 May 2011 (see paragraphs 197 -203, 209-210 and 211 ‑ 216 above). V. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 218. The applicant complained that the authorities had not complied with the requirements of Article 5 § 2 of the Convention. This provision reads as follows: “ Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” 219. The Government contested that argument. A. Admissibility 220. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 221. First of all, the applicant submitted that he had not been informed of the grounds for his arrest either at the place of protest or when he was brought to the ERU headquarters. It was only on 14 June 2010, more than 72 hours after his arrest, that he had been informed orally that he would be deported to Syria on the same day. Relying on the Court ’ s judgment in Saadi v. the United Kingdom ([GC], no. 13229/03, ECHR 2008), the applicant pointed out that this could not be considered to be “prompt” and therefore in line with the requirements of Article 5 § 2. Although the applicant, along with a number of others, had submitted a Rule 39 request the day after his arrest, this had been due to the involvement of other members of the Kurdish community in Cyprus and the Yekiti Party who had been afraid that there was a serious possibility of deportation and instructed a lawyer to take action on behalf of those concerned. 222. Furthermore, the applicant pointed out that the deportation and detention orders had not been served on him. He had found out about them through his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court. Likewise, the applicant had not been served with the letter of 11 June 2010. In this connection, the applicant noted that he had never refused to take receipt of any kind of information in writing. He also considered it strange that police officers in different detention centres had managed to co-ordinate and deliver all these letters to so many people on the same day. In any event, the letter addressed to the applicant was in English, a language that he could not understand. Moreover, it did not contain any information as to the remedies available for challenging the decision to detain and deport him. 223. Lastly, the applicant had not been notified of the new orders issued against him on 20 August 2010 but had found out about the decision of the Minister of the Interior when he received a copy of the Government ’ s letter of 12 October 2010 to the Court informing the latter of the issuance of those orders (see paragraphs 47 -48 above ). (b) The Government 224. The Government submitted that once he had been identified at the ERU headquarters, the applicant was arrested and charged with the flagrant offence of unlawful stay in the Republic. He had been told there and then of the reasons for his arrest and detention, namely, that he had been staying on the territory unlawfully and was therefore a “prohibited immigrant”. He had also been informed that he had been detained with a view to his deportation and that this was imminent. Further, he had been informed of his right, under the Law on the Rights of Persons who are Arrested and Detained (Law no. 163(1)/2005 ), to contact a lawyer of his own choice (see paragraph 93 above). As a result the applicant had been able to appoint a lawyer and apply to the Court for an interim measure. In any event, the Government considered that in view of the identification process at the ERU headquarters, during which the police had asked the applicant for his identity papers and questioned him about his immigration status, the reasons for his arrest and detention must have been evident to him. 225. In addition, the Government noted that a letter had been prepared in English by the Civil Registry and Migration Department informing the applicant of the authorities ’ decision to deport him and the reasons for that decision. The letter also informed the applicant that his temporary residence permit had been revoked and that he had the right to be represented before the authorities, to seek the services of an interpreter and to express possible objections to his deportation. The applicant had, however, refused to sign and receive the letter (see paragraph 44 above). 226. The Government did not make any submissions as to whether the applicant had been notified on 20 August 2010 of the new deportation and detention orders and, consequently, the change of the legal basis of his detention (see paragraph 183 above). 2. The Court ’ s assessment (a) General principles 227. The Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that anyone who has been arrested should know why he is being deprived of his liberty. This is a minimum safeguard against arbitrary treatment. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 anyone who is arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182). Anyone entitled to take proceedings to have the lawfulness of his detention speedily decided cannot make effective use of that right unless he is promptly and adequately informed of the reasons relied on to deprive him of his liberty (see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A). Further, if the grounds for detention change, or if new relevant facts arise concerning the detention, a detainee has a right to this further information (see X. v. the United Kingdom, no. 6998/75, Commission ’ s report of 16 July 1980, § 105, Series B no. 41). 228. The constraints of time imposed by the notion of promptness will be satisfied where the reasons for the arrest are provided within a few hours of arrest (see Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999, and Fox, Campbell and Hartley, cited above, § 41 ). A violation was found by the Court where seventy-six hours elapsed before the applicants were informed of the reasons of detention ( Saadi, §§ 55-56, cited above; see also Shamayev and Others v. Georgia and Russia, § 416, cited above, where the Court found a violation in respect of a four-day delay; and Rusu v. Austria, no. 34082/02, § 43, 2 October 2008 in respect of a ten-day delay). 229. As regards the manner of communicating the reasons for the arrest, Article 5 § 2 does not require the reasons to be given in writing to the detained person or otherwise in a particular form ( see Kane v. Cyprus (dec.), no. 33655/06, 13 September 2011, and X. v. Germany, no. 8098/77, Commission decision of 13 December 1978, DR 16, p. 111). Further, the reasons may be provided or become apparent in the course of post-arrest interrogations or questioning (see Kerr, cited above; Murray v. the United Kingdom, 28 October 1994, § 77, Series A no. 300 ‑ A; and Fox, Campbell and Hartley, § 41, cited above). 230. It should also be noted that when a person is arrested with a view to extradition, the information given may be even less complete (see Kaboulov v. Ukraine, no. 41015/04, §§ 143-144, 19 November 2009, with further references; Ryabikin v. Russia (dec.), no. 8320/04, 10 April 2007; and K. v. Belgium, no. 10819/84, Commission decision of 5 July 1984, DR 38, p. 230). A similar approach has been taken in deportation cases ( see, for example, Kane, cited above). (b) Application to the present case 231. In the present case on 11 June 2010 the applicant, along with the other protesters, was taken to the ERU headquarters and kept there for identification purposes. His detention continued on the basis of deportation and detention orders issued on the same day which remained in force until 20 August 2010. New orders were then issued on the latter date, changing the grounds for the applicant ’ s detention. 232. In view of the above, the Court considers that the applicant ’ s complaint under this provision is twofold. 233. First of all, the Court has to examine whether the applicant was informed of the reasons for his detention on 11 June 2010. In this respect, the Court notes that the parties differ as to the exact date when the applicant found out about the reasons for his detention. On the one hand, the applicant claimed that he had not been informed orally of the grounds for his arrest and detention until 14 June 2010, that is, after more than seventy-two hours. He also stated in that connection that he had not received any information in writing. According to the Government, on the other hand, the applicant had been informed orally on 11 June 2010, once his identity had been checked, of the grounds for his arrest and detention as well as the fact that he was facing imminent deportation. They also claimed that in any event, these grounds must have become apparent to him during the identification procedure. As to the written reasons, they stated that attempts had also been made to serve the applicant with the relevant letter. 234. The Court observes that upon his transfer to the ERU headquarters the applicant, along with the rest of the protesters, underwent an identification procedure which was aimed at ascertaining whether any of them were staying in Cyprus unlawfully. The Court has no reason to doubt, in the circumstances, that the applicant was informed at the time that he had been arrested on the ground of unlawful stay or that he at least understood, bearing in mind the nature of the identification process, that the reason for his arrest and detention related to his immigration status. In this connection, the Court notes that the applicant filed a Rule 39 request, along with a number of other protesters, the very next day, seeking the suspension of their deportation. A reading of this request indicates that they were all aware of the fact that they were detained for the purpose of deportation. 235. The foregoing considerations are sufficient to enable the Court to conclude that the requirements of Article 5 § 2 of the Convention were complied with. 236. There has accordingly been no violation of this provision as regards the first part of the applicant ’ s complaint. 237. The second issue under this provision concerns the notification of the applicant of the new grounds for his detention on 20 August 2010. However, having regard to its findings under Article 5 § 1 of the Convention pertaining to the applicant ’ s detention on this new basis (see paragraphs 2 11-216 above), the Court considers that it is not necessary to examine this part of the case under Article 5 § 2 as well. VI. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 4 TO THE CONVENTION 238. Lastly, the applicant complained of a violation of Article 4 of Protocol No. 4 in that the authorities were going to deport him and others collectively without having carried out an individual assessment and examination of his case. This provision provides as follows: “Collective expulsion of aliens is prohibited.” A. Admissibility 239. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 240. The applicant, relying on the Čonka judgment (cited above), submitted that he had been the subject of a collective expulsion operation. In his view, the intention of the authorities had been to deal with a group of individuals, namely Syrian Kurds, collectively. This had been evident from all the circumstances of the case. The relevant meetings that had been held by the authorities concerned the handling of the situation of Syrian Kurdish failed asylum - seekers. The Minister of the Interior had given instructions to proceed with the deportation of Syrian Kurdish failed asylum-seekers with the exception of those who were Ajanib or Mahtoumeen. The police had been instructed to use discreet methods of arrest and execute the deportation orders starting with the leaders of the protest. As a result, the police had carried out an operation on 11 June 2010 against the whole group of protesters, including women and children. According to the Government only those whose asylum applications had still been pending were released. The rest had been kept in detention pending deportation. However, in reality, the asylum procedure had not been completed for the applicant as well as a number of other protesters whom the Government had intended to deport. If it had not been for the application of Rule 39 by the Court they would all have been deported. In fact, some of the protesters had been released by the authorities following the application of Rule 39 and had had their deportation orders annulled. The applicant also noted that the authorities had issued deportation orders against stateless Syrian Kurds and that some of the asylum-seekers concerned had had their asylum applications dismissed purely on procedural grounds without having benefited from an examination of the merits of their claim. 241. The applicant further pointed out that everyone had been arrested at the same time and had been informed orally of the same thing, namely, that they would be deported. The letters prepared by the authorities had been couched in identical terms and had therefore just been a formality. The same could be said for a number of the letters sent, requesting the individuals concerned to make arrangements to depart from Cyprus, as they had been issued just before the operation was carried out or just after and, in one case, even after the person in question had been sent back to Syria. 242. Consequently, it could not be said in the circumstances that an individual examination of each case had taken place. The applicant submitted therefore that all the elements indicated that the authorities had carried out a collective expulsion operation in violation of Article 4 of Protocol No. 4. (b ) The Government 243. The Government submitted that the authorities had carried out a detailed individual examination of the immigration status of all the protesters in order to ascertain whether or not they were staying in the Republic unlawfully. Letters proposing detention and deportation had been issued on the same day and separate deportation and detention orders had then been issued against each person. Although the instructions given by the Minister of the Interior to the authorities had been that the deportation of Kurdish failed asylum-seekers from Syria should go ahead in the normal way, these instructions could not have been enforced without the issuing of deportation and detention orders. The latter had been issued on the ground of unlawful stay and not on the basis of the aforementioned instructions. The authorities had already been searching for a number of people who were among the protesters and had been staying in Cyprus unlawfully. Some of them had already been asked to leave the country following the rejection of their asylum applications. 244. The authorities would have therefore proceeded in any event to deport these individuals once traced, even if the Minister had not given the relevant instructions. The Government therefore maintained that it had acted in compliance with Article 4 of Protocol No. 4. 2. The Court ’ s assessment (a) General principles 245. According to the well-established case ‑ law of the Commission and the Court, collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure of the competent authority compelling aliens, as a group, to leave the country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group ( see, for example, Hirsi Jamaa and Others v. Italy, [GC], no. 27765/09, §§ 166-167, ECHR 2012; Čonka, cited above; § 59, Ghulami v. France (dec), no. 45302/05, 7 April 2009; Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts); Davydov v. Estonia (dec), no. 16387/03, 31 May 2005; Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; A. and Others v. the Netherlands, no. 14209/88, Commission decision of 16 December 1988; O. and Others v. Luxembourg, no. 7757/77, Commission decision of 3 March 1978; K.G. v. the F.R.G ., no. 7704/76, Commission decision of 1 March 1977; and Henning Becker v. Denmark, no. 7011/75, Commission decision of 3 October 1975). It can be derived from this case-law that the purpose of Article 4 of Protocol No. 4 is to prevent States from removing certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority (see Hirsi, cited above, §177 ). 246. The fact, however, that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see the judgments in Hirsi, § 184 and Sultani, § 81, both cited above; the Court ’ s decisions in Ghulami and Andric, both cited above; and the Commission ’ s decisions in Tahiri v. Sweden, no. 25129/94, decision of 11 January 1995 and B. and others v. the Netherlands, no. 14457/88, decision of 16 December 1988). 247. Moreover, there will be no violation of Article 4 of Protocol No. 4 if the lack of an expulsion decision made on an individual basis is the consequence of an applicant ’ s own culpable conduct (see Berisha and Haljiti v. “the former Yugoslav Republic of Macedonia”, no. 18670/03, decision of 16 June 2005, where the applicants had pursued a joint asylum procedure and thus received a single common decision, and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011, where the applicants had refused to show their identity papers to the police and thus the latter had been unable to draw up expulsion orders in the applicants ’ names). 248. The Court observes that, to date, it has found a violation of Article 4 of Protocol No. 4 in only two cases. First, in Čonka, which concerned the deportation of Slovakian nationals of Roma origin from Belgium to Slovakia, the Court found a breach because the procedure followed by the authorities did not enable it to eliminate all doubt that the expulsion might have been collective. This view was taken on the grounds that the applicants ’ arrest and consequent expulsion was ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to the requests for asylum, and in view of the large number of people of the same origin who had suffered the same fate as the applicants. The Court added that the doubt was reinforced by a series of factors: “ ... firstly, prior to the applicants ’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation ...; secondly, all the aliens concerned had been required to attend the police station at the same time; thirdly, the orders served on them requiring them to leave the territory and for their arrest were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.” 249. In these circumstances, the Court concluded that the procedure followed by the Belgian authorities had not afforded sufficient guarantees ensuring that the personal circumstances of each of those concerned had been genuinely and individually taken into account (§ 63). 250. The Court considered that the measures taken on 29 September 1999 had to be seen in isolation from the earlier decisions regarding the asylum procedure in which the applicants ’ individual circumstances had been examined and which, according to the minority view, provided sufficient justification for the expulsion (see the separate opinions of Judge Velaers and Jungwiert joined by Judge Kūris). 251. The recent case of Hirsi (cited above, §§ 166-186 ) concerned the return of migrants, intercepted on the high seas by Italian naval vessels, to Libya, which was the country of their departure. The Court came without difficulty to the conclusion that there had been a clear violation of Article 4 of Protocol No. 4. It first ruled on the complicated issue of the extraterritorial applicability of Article 4 of Protocol No. 4 which arose in that case. Once it had found that this provision was applicable, the violation was self-evident, as the transfer of the applicants to Libya had been carried out without any form of examination of each applicant ’ s individual situation. It was not disputed that the applicants had not undergone any identification procedure by the Italian authorities, who restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers. In the Court ’ s view this was sufficient to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination (§§ 185-186). (b) Application of the above principles 252. In the instant case, the Court notes that an identification procedure in respect of the 149 Syrian Kurd protesters was carried out on 11 June 2010 at the ERU headquarters. Upon arrival at the headquarters registration took place and the status of each person was then examined using computers which had been specially installed the day before. According to the Government, this procedure revealed that seventy-six adults, along with their thirty children, were staying in the Republic unlawfully after having had their asylum applications rejected or their files closed. In this connection, the Court observes that it is clear from the information before it that their asylum applications had been dealt with on an individual basis over a period of more than five years. For those in respect of which the asylum procedure had been completed, the asylum applications had either been dismissed after an examination of their personal circumstances and any evidence they had provided or the files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals individually examined and dismissed. Separate letters had been sent out by the asylum authorities to the individuals concerned, informing them of the relevant decisions. 253. Deportation and detention orders had already been issued in respect of some of the persons concerned. Orders against the remainder were issued on 11 June 2010. The authorities had carried out a background check with regard to each person before issuing the orders and separate deportation and detention orders were issued in respect of each person. Individual letters were also prepared by the Civil Registry and Migration Department informing those detained of the authorities ’ decision to detain and deport them. 254. It is clear from the above that all those concerned did have an individual examination of their personal circumstances. As a result of this examination some of the persons arrested were allowed to return home as their immigration status was found to be in order and thus their presence on Cypriot territory was lawful. In these circumstances, the fact that all the persons concerned were taken together to the ERU headquarters and that the authorities decided to deport them in groups did not render their deportation a collective measure within the meaning attributed to that term by the Court ’ s case-law. Similarly, the fact that the deportation orders and the corresponding letters were couched in formulaic and, therefore, identical terms and did not specifically refer to the earlier decisions regarding the asylum procedure is not itself indicative of a collective expulsion. What is important is that every case was looked at individually and decided on its own particular facts (see Andric, cited above ). Although not expressly stated in the deportation orders and letters, the decision to deport was based on the conclusion that the person concerned was an illegal immigrant following the rejection of his or her asylum claim or the closure of the asylum file. Although a mistake was made in relation to the status of some of the persons concerned, including that of the applicant (see paragraphs 58 and 134 above) this, while unfortunate, cannot be taken as showing that there was a collective expulsion. 255. In view of the foregoing, the Court is not persuaded that the measure taken by the authorities reveals the appearance of a collective expulsion within the meaning Article 4 of Protocol No. 4. There has therefore not been a violation of this provision. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 256. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 257. The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage. 258. The Government contested this claim in so far as it concerned Articles 2 and 3 of the Convention as the applicant had not been deported. They also considered that the claim was excessive. 259. Having regard to the nature of the violations found in the present case and the relevant case-law, the Court, ruling on an equitable basis as required under Article 41, awards the amount claimed by the applicant under this head in full. B. Costs and expenses 260. The applicant also claimed EUR 1,700 plus VAT for costs and expenses incurred before the Court, less the sum granted as legal aid by the Council of Europe. In this respect he submitted that this was the amount agreed upon with his representative and it represented the sum normally awarded for costs by the Supreme Court in successful recourse proceedings. 261. The Government contested the applicant ’ s claim and maintained that it was excessive. 262. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant has failed to provide any supporting documents – such as itemised bills or invoices – substantiating his claim (Rule 60 §§ 1 and 2 of the Rules of Court). The Court accordingly makes no award under this head. C. Default interest 263. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been no violation of Article 4 of Protocol No. 4 to the Convention. It noted in particular that it was important that every case concerning deportation was looked at individually and decided on its own particular facts. The fact that the protestors, including the applicant, were taken together to the police headquarters, that some were deported in groups, or that deportation orders and letters were phrased in similar terms and therefore did not specifically refer to earlier stages of respective applications did not make this a collective measure. Each decision to deport a protestor had been based on the conclusion that they were an irregular immigrant following the rejection of his or her asylum claim or the closure of the file, which had been dealt with on an individual basis over a period of more than five years. Consequently, the measures in question did not have the appearance of a collective expulsion. In this case the Court further held that there had been a violation of Article 13 (right to an effective remedy) of the Convention taken together with Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment) of the Convention, a violation of Article 5 §§ 1 (unlawful detention) and 4 (effective remedy to challenge lawfulness of detention) of the Convention, and no violation of Article 5 § 2 (right to be informed of reasons for arrest and charge) of the Convention. |
504 | Unavailability of widows’ allowances to widowers | II. RELEVANT DOMESTIC LAW AND PRACTICE 14. Under United Kingdom law, certain social-security benefits, including widow's payment, widowed mother's allowance and widow's pension, are paid for out of the National Insurance Fund. By section 1 of the Social Security and Benefits Act 1992 (“the 1992 Act”), the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament. 15. Male and female earners are obliged to pay the same social-security contributions in accordance with their status as employed earners or self-employed earners. Widow's payment 16. Under section 36 of the 1992 Act, a woman who has been widowed is entitled to a widow's payment (a lump sum payment of GBP 1,000) if: (i) she is under pensionable age at the time when her husband died, or he was not then entitled to a Category A retirement pension; and (ii) her husband satisfied certain specified social-security contribution conditions set out in a schedule to the 1992 Act. Widowed mother's allowance 17. Under the relevant part of section 37 of the 1992 Act, a woman who has been widowed (and who has not remarried) is entitled to a mother's allowance on certain conditions, the following being the conditions relevant to the circumstance of the present case: (i) her husband satisfied the contribution conditions set out in a schedule to the Act; and (ii) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband. The widowed mother's allowance currently amounts to GBP 72.50 per week, with an extra GBP 9.70 per week in respect of the eldest eligible child, and a further GBP 11.35 per week in respect of other children. Widow's pension 18. Under section 38 of the 1992 Act, a woman who has been widowed (and who is not remarried) is entitled to a widow's pension 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 but under the age of 65; or (ii) she ceased to be entitled to a widowed mother's allowance at the time she was over the age of 45 but under the age of 65. If the applicant were a woman, he could look forward to entitlement to a widow's pension at some stage between 2006 and 2009, depending on when his youngest child ceased to be a dependant, at which time he would no longer be entitled to the widowed mother's allowance. Time-limit for applications for benefits 19. Section 1(1) of the 1992 Act, which applies to the applicant, provides that no entitlement to a benefit arises unless a claim for the benefit is made in the prescribed manner and within the prescribed time. At the relevant time, the time-limits for claiming a widow's payment and a widowed mother's allowance were set out in the Social Security (Claims and Payments) Regulations 1987 (Statutory Instrument 1987/1968), Regulation 19 of which provided: “(6) The prescribed time for claiming benefits not specified in column (1) of Schedule 4 shall be – ... (b) twelve months in the case of ... widow's benefit ... (7) The periods of six and twelve months prescribed by paragraph (6) are calculated from any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.” In addition, section 1(2) of the Social Security Administration Act 1992 provides, in relation to claims for a widow's payment: “Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it – (a) if the benefit is a widow's payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made ... ” The Welfare Reform and Pensions Act 1999 20. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) introduces two new social-security benefits, the widowed parent's allowance and the bereavement allowance. The widowed parent's allowance replaces the widowed mother's allowance. The bereavement allowance replaces the widow's pension. Both are payable to men and women who meet the relevant qualifying conditions. The 1999 Act also introduces a new social-security payment, called a bereavement payment, payable both to men and women in place of the widow's payment. 21. The relevant parts of the Act came into force on 9 April 2001 and allow any man whose wife dies before, on or after that date, or any woman whose husband dies on or after that date, to apply for the widowed parent's allowance. It also allows any man whose wife dies on or after that date to apply for the bereavement payment or the bereavement allowance in exactly the same way as a woman whose husband dies on or after that date. 22. The transitional provisions of the 1999 Act preserve the entitlements of women under the 1992 Act whose husbands died before 9 April 2001. Such women thus continue to be entitled to the widow's payment, the widowed mother's allowance and the widow's pension where the relevant qualifying conditions are met. Thomas John Hooper and Others v. Secretary of State for the Department of Work and Pensions ([2002] High Court, Administrative Court ( England and Wales ) 191) 23. On 14 February 2002 Mr Justice Moses delivered judgment in the High Court in a case brought by four claimants, all of whom were widowers claiming, inter alia, that their ineligibility for widows' benefits under the 1992 Act was discriminatory contrary to Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1. Three of the claimants had been left with dependent children, with the result that the benefits at issue in their cases were the widow's payment and the widowed mother's allowance. The fourth claimant (Mr Naylor) had been left without dependent children, with the result that the benefits at issue in his case were the widow's payment and the widow's pension. 24. The defendant government department conceded before the High Court that there had been discrimination under Article 14 of the Convention taken in conjunction with Article 8 in relation to non-payment of the widowed mother's allowance. As regards the question of whether the claimants' complaints, in so far as they related to the widow's payment and the widow's pension, fell within the ambit of Article 8, Mr Justice Moses commented as follows: “In my view, the availability of pecuniary support afforded by Widow's Payment and Widow's Pension does have a significant effect on the relationship of a family prior to the death of the spouse. They form a significant part of a family's plans for a secure future. ... Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse. ... Moreover, Widow's Payments and Widow's Pensions form part of a congeries of provisions, all of which are designed to provide support to a surviving spouse at different stages of her life. Widow's Payments ... are one-off payments made immediately on bereavement. Widowed Mother's Allowances are paid whilst she looks after dependent children and Widow's Pension payable in the longer term between the ages of 45-65 when she has finished bringing up her children. Viewed as part of a package, the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband. Accordingly, for those reasons I conclude that the failure to make Widow's Payment and Widow's Pension available to a surviving widower falls within the ambit of Article 8(1). Thus Article 14 is itself engaged.” 25. In dismissing the claimants' arguments that the same complaints fell also within the ambit of Article 1 of Protocol No. 1, Mr Justice Moses commented: “... In order to establish that the benefits in issue are their possessions, the claimants must establish a pecuniary right based upon their contributions. Absent such contributions, they have no possession within the meaning of Article 1 of the First Protocol. There is no hint, in any of the cases that the [ Strasbourg ] Court intended to depart from the fundamental principle that to come within the ambit of Article 1 of the First Protocol, a property right must be established. ... ... A deceased widow's entitlement to benefits depends upon the contributions of the deceased husband. ... A widower has no entitlement under domestic legislation arising from the contributions of his deceased spouse. He thus has no entitlement and consequently no possession within the meaning of Article 1 of the First Protocol.” 26. Prior to his examination of whether there was objective justification for non-payment of the widow's pension to widowers, Mr Justice Moses observed: “Only Mr Naylor's case raises the issue of Widow's Pension. Although other claimants, in their written argument, raised the issue of future entitlement to Widow's Pension, such a claim is hypothetical, since they are too young to claim it now and may never become entitled should they re-marry, ... or should they co-habit ...” Mr Justice Moses concluded that there was objective justification for the difference in treatment between widows and widowers as regards entitlement to a widow's pension under the 1992 Act. COMPLAINTS 27. The applicant complained that the United Kingdom authorities' refusal to pay him the social-security benefits to which he would have been entitled had he been a woman in a similar position, namely a widowed mother's allowance and a widow's payment, constituted discrimination against him and his wife on grounds of sex contrary to Article 14 of the Convention taken in conjunction with each of Article 8 of the Convention and Article 1 of Protocol No. 1. He made an identical complaint as regards his future non-entitlement to a widow's pension. He complained also of a violation of Article 13 of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 28. The applicant complained that the United Kingdom authorities' refusal to pay him the social-security benefits to which he would have been entitled had he been a woman in a similar position, namely a widowed mother's allowance and a widow's payment, constituted discrimination against him and his wife on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. He made an identical complaint as regards his future non-entitlement to a widow's pension. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 provides: “1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Widow's payment and widowed mother's allowance 1. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 29. The Court notes that, according to its established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see, among other authorities, Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1 996-IV, p. 1141, § 36). 30. The applicant argued that the widow's payment and the widowed mother's allowance come within the ambit of Article 1 of Protocol No. 1 because they are both pecuniary rights payable on the satisfaction of the legislative conditions. He highlighted the fact that the right to receive the benefits in question is conditional upon the payment of contributions to the National Insurance Fund. As the contributions were clearly within the ambit of Article 1 of Protocol No. 1, so must be the ensuing benefits. 31. The Government did not make any submissions on the applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in relation to these aspects of the complaint, other than to argue that the conclusions reached by Mr Justice Moses in the High Court in Hooper (see paragraph 25 above) were correct. 32. The Court notes that in Gaygusuz (cited above, pp. 1141-42, §§ 39-41) it considered that the right to emergency assistance, entitlement to which was linked to the payment of contributions to the unemployment insurance fund, constituted a pecuniary right for the purposes of Article 1 of Protocol No. 1. Similarly, the Commission has previously assimilated the right to social-security benefits to a property right within the meaning of that Article where a person has made contributions to a social-security system from which he will later derive the benefits concerned (see, for example, Müller v. Austria, no. 5849/72, Commission's report of 1 October 1975, Decisions and Reports (DR) 3, p. 25, and G. v. Austria, no. 10094/82, Commission decision of 14 May 1984, DR 38, p. 84). 33. The Court notes that at the material time the widow's payment and the widowed mother's allowance were paid to women who had been widowed and who satisfied the various statutory conditions laid down in the 1992 Act (see paragraphs 16 and 17 above). Both these social-security benefits were paid out of the National Insurance Fund, into which male and female earners were obliged to pay contributions in accordance with their status as employed or self-employed earners. 34. In the instant case, it has not been argued that the applicant did not satisfy the various statutory conditions for payment of a widow's payment and a widowed mother's allowance. The refusal to recognise the applicant as being entitled to those benefits was based exclusively on his male sex. A female in the same position as the applicant would have had a right, enforceable under domestic law, to receive a widow's payment and a widowed mother's allowance. 35. The Court does not consider it significant that the statutory condition requiring payment of contributions into the National Insurance Fund required the contributions to have been made, not by the applicant, but by his late wife. It is not therefore necessary for the Court to address in this case the question of whether a social-security benefit must be contributory in nature in order for it to constitute a “possession” for the purposes of Article 1 of Protocol No. 1. 36. The Court therefore considers that the right to a widow's payment and a widowed mother's allowance – in so far as provided for in the applicable legislation – is a sufficiently pecuniary right to fall within the ambit of Article 1 of Protocol No. 1. The Court considers further that, as the applicant was denied the right to a widow's payment and a widowed mother's allowance on the ground of a distinction covered by Article 14 of the Convention, namely sex, that provision must also be applicable to this aspect of his complaint (see, among other authorities, Gaygusuz, cited above, p. 1142, § 41). 2. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 37. The applicant argued that the difference in treatment between men and women as regards entitlement to a widow's payment and a widowed mother's allowance was not based on any objective and reasonable justification. In particular, it was based upon gender-stereotyping and broad generalisations which were no longer an accurate reflection of social conditions in the United Kingdom. The fact that widows' benefits were not means-tested meant that high-earning women in a position similar to that of the applicant would benefit, while the applicant and other men would be denied such benefits regardless of their need. The fact that resources were finite did not justify concentrating all the resources which were available on the protection of bereaved women to the detriment of widowed men. Indeed, the applicant highlighted the fact that working women in his wife's position were required to pay the same proportion of their earnings to the National Insurance Fund as men, notwithstanding the more limited benefits offered to their surviving relatives in the event of their death. He pointed out the less discriminatory approaches taken by the majority of the other member States of the Council of Europe in the context of survivors' benefits. 38. The Government did not make any submissions on the compliance with Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1, of the decision to refuse the applicant the widow's payment and the widowed mother's allowance. 39. According to the Court's case-law, a difference of treatment is discriminatory for the purposes of Article 14 of the Convention 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”. 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. However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of sex as compatible with the Convention (see, among other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p. 186, § 39). 40. The Court notes that the applicant's wife worked throughout the best part of her marriage to the applicant and during that time paid full social-security contributions as an employed earner in exactly the same way as a man in her position would have done. It notes also that the applicant gave up work to nurse his wife and care for their children on 3 November 1995 and that, being a relatively low earner, it proved uneconomic for him to return to work on a part-time basis following his wife's death. Despite all this, the applicant was entitled to significantly fewer financial benefits upon his wife's death than he would have been if he were a woman and she had been a man. 41. The Court observes also that the authorities' refusal to grant the applicant a widow's payment and a widowed mother's allowance was based exclusively on the fact that he was a man. It has not been argued that the applicant failed to satisfy any of the other statutory conditions for the award of those benefits and he was accordingly in a like situation to women as regards his entitlement to them. 42. The Court considers that the difference in treatment between men and women as regards entitlement to the widow's payment and widowed mother's allowance, of which the applicant was a victim, was not based on any “objective and reasonable justification”. 43. There has accordingly been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. B. Widow's pension 44. The applicant stated that he faced a very significant risk that he would, within the next few years, be deprived on the grounds of his sex of a widow's pension to which he would otherwise have been entitled. He argued that he was already suffering detriment due to his being deprived of the possibility of ever applying for a widow's pension. 45. The applicant maintained that a widow's pension constituted a “possession” for the purposes of Article 1 of Protocol No. 1. He pointed to the fact that it was a pecuniary social benefit, entitlement to which was linked to the satisfaction of statutory conditions, including the payment of national insurance contributions. He submitted that the conditions applying to eligibility to a widow's pension were discriminatory against him and that his case was thus indistinguishable from Gaygusuz (cited above). 46. The Government pointed out that a widow in the applicant's position would not be entitled to a widow's pension until at least 2006, and possibly not until 2009, which is the latest date on which the applicant's youngest child will cease to be regarded as being dependent. They stated that a woman in the applicant's position might never qualify for a widow's pension because she might not, at the time of her future claim, meet the relevant statutory criteria. The Government thus considered this aspect of the complaint hypothetical and speculative. 47. The Government argued that, in any event, a widow's pension did not fall within the scope of Article 1 of Protocol No. 1 since it did not constitute a “possession” for the purposes of that Article. They highlighted the fact that entitlement to a widow's pension was dependent on the national insurance contributions of the deceased spouse of the claimant. They indicated that Article 1 of Protocol No. 1 did not entitle a person to any particular benefit of any particular amount, nor did it entitle a person to payment of a social-security benefit unless that person had satisfied the conditions laid down by domestic law. They drew support for their submissions from the judgment of the High Court in Hooper (see paragraph 25 above). 48. The Court reiterates that Article 14 of the Convention affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see, for example, Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no. 192, p. 19, § 60). 49. In the present case, even if the applicant were a woman and the discrimination of which he complains was thus removed, he would not currently qualify for a widow's pension under the conditions set out in the 1992 Act. Indeed, a widow in the applicant's position would not qualify for the pension until at least 2006 and might never so qualify due to the effect of other statutory conditions requiring, for example, that a claimant does not re-marry before the date on which her entitlement would otherwise crystallise. Three of the four claimants in Hooper (cited above) were in an equivalent position to the applicant in this respect, leading Mr Justice Moses to comment that their claims to the pension were “hypothetical” (see paragraph 26 above). 50. The Court thus concludes that, since the applicant has not been treated differently from a woman in an analogous situation, no issue of discrimination contrary to Article 14 of the Convention arises as regards entitlement to a widow's pension on the facts of this case. It follows that it is unnecessary for the Court to consider whether the applicant's complaints in this context fall within the scope of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 51. The applicant also complained that the United Kingdom authorities' refusal to pay him the widow's payment and widowed mother's allowance to which he would have been entitled had he been a woman in a similar position constituted discrimination on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 8. He made an identical complaint as regards his future non-entitlement to a widow's pension. 52. The relevant part of Article 8 of the Convention 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 ... the economic well-being of the country ...” A. Widowed mother's allowance and widow's payment 53. The Court, having concluded that there has been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 as regards the applicant's non-entitlement to the widowed mother's allowance and the widow's payment, does not consider it necessary to examine his complaints in that regard under Article 14 of the Convention taken in conjunction with Article 8. B. Widow's pension 54. The applicant argued that the provision of a widow's pension to a surviving spouse was clearly intended to promote family life. He maintained that a widow's pension was paid to, among others, a widow who had dependent children at the date of her husband's death once she was no longer in receipt of child benefits. He submitted that the provision of the pension to a surviving spouse was intended to recognise and promote the family relationship between spouses and that entitlement to it affected the way in which married partners arranged their financial affairs. He thus submitted that his complaint as regards future non-entitlement to a widow's pension fell within the ambit of Article 8 of the Convention. 55. The Government, at the outset, submitted that the widow's pension did not fall within the ambit of Article 8 of the Convention because it was payable following bereavement and, in contrast to the widowed mother's allowance, was not aimed at enhancing family or private life. However, later in the proceedings before the Court the Government accepted the applicant's argument that the widow's pension fell within the ambit of that Article. 56. The Court has already concluded (see paragraph 50 above) that no issue of discrimination contrary to Article 14 arises as regards entitlement to a widow's pension on the facts of this case. It follows that it is unnecessary for the Court to consider whether the applicant's complaints in the context of the widow's pension fall within the scope of Article 8 of the Convention. III. ALLEGED DISCRIMINATION SUFFERED BY THE APPLICANT'S LATE WIFE 57. The applicant complained also about discrimination suffered by his late wife in respect of the decision to refuse him a widow's payment and a widowed mother's allowance, and in respect of his future non-entitlement to a widow's pension, notwithstanding the social-security contributions made by her during her lifetime. The Court considers that this aspect of the complaint does not raise any issues separate from those raised in respect of the discrimination alleged to have been suffered by the applicant himself. In the light of the conclusions reached above, the Court does not consider it necessary to consider this aspect of the complaint. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 58. The applicant also complained that he had no effective remedy before a national authority because the discrimination of which he complained was contained within unambiguous primary legislation. 59. 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.” 60. The applicant argued that, because the discrimination of which he complained was contained in unambiguous primary legislation, and because the Convention had not at the relevant time been incorporated into domestic law, there were no means by which he could challenge the refusal of benefits before the domestic courts or other authorities. 61. The Government did not submit any observations on the merits of the applicant's complaints. 62. 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 grounds that it is contrary to the Convention (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 47, § 85). It is therefore unable to accept the applicant's argument. 63. The facts of the present case therefore disclose no violation of Article 13 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 65. In respect of pecuniary damage, the applicant claimed: (i) 21,804.07 pounds sterling (GBP) in respect of loss of the widow's payment (GBP 1,000) and the widowed mother's allowance up to 9 April 2001, less deductions in respect of the invalid care allowance and the one-parent benefit paid to him over that period (GBP 20,804.07); (ii) widowed mother's allowance payments in respect of an ongoing period after 9 April 2001; (iii) widow's pension payments once his entitlement to the widowed parent's allowance ceased; and (iv) interest at the rate of 8% per annum on the arrears of all widows' benefits found owing to him from 7 June 1996 until the date of judgment. 66. The Government accepted the applicant's calculation in respect of the widow's payment and the widowed mother's allowance payable up to 9 April 2001. It opposed the applicant's claim for interest on the basis that social-security benefits are not generally paid for investment purposes. The Government thus concluded that the applicant was entitled to GBP 21,804.07 in respect of pecuniary damage. 67. The Court notes that the applicant's calculations as to the amount of the widow's payment and the widowed mother's allowance payable after deductions until implementation of the new scheme created by the 1999 Act on 9 April 2001 is not disputed by the Government. 68. The Court further observes that, from 10 April 2001, the applicant has been entitled to claim the widowed parent's allowance in exactly the same way as he could, had he been a woman, have claimed the widowed mother's allowance under the 1992 Act. 69. The Court considers that interest can be claimed from the dates on which each recoverable element of past pecuniary damage accrued (see, among other authorities, Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 24, ECHR 2000-IX). 70. In these circumstances, and making an award on an equitable basis, the Court awards compensation to the applicant in the sum of GBP 25,000 in respect of the refusal to grant him the widow's payment and the loss of the widowed mother's allowance up to 9 April 2001. B. Costs and expenses 71. The applicant also claimed GBP 19,142.94 in respect of costs and expenses, inclusive of value-added tax (VAT). This included the fees of the applicant's solicitors and counsel together with fees for liaison with other non-governmental organisations in connection with the case and the fees of an expert social economist. 72. The Government did not dispute the base hourly rates claimed by the applicant's solicitors, but submitted that a 100% uplift on those fees was unjustified. They stated that the hourly rate charged by the applicant's counsel was also excessive. They argued that sums in respect of liaison with other non-governmental organisations should not be recoverable and maintained that, if their preliminary objections as to the applicant's complaint relating to non-entitlement to the widow's pension was upheld by the Court, the applicant should not be entitled to that part of his costs and expenses connected to that complaint. The Government suggested that a reasonable sum in respect of costs and expenses would be GBP 3,000 inclusive of VAT. 73. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). 74. The Court does not consider that its conclusions in respect of the applicant's complaint about non-entitlement to a widow's pension imply that the associated legal costs and expenses were unnecessarily incurred or were unreasonable as to quantum (see Smith and Grady (just satisfaction), cited above, § 30, and Jordan v. the United Kingdom (no. 1), no. 30280/96, § 42, 14 March 2000). However, it does consider that the uplift included in the solicitor's fees was unwarranted and that the counsel's fees were excessive. In light of the above, the Court awards the global sum of GBP 12,500 for legal costs and expenses, inclusive of VAT. C. Default interest 75. 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 held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 (protection of property) of Protocol No. 1, finding that the difference in treatment between men and women regarding entitlement to the Widow’s Payment and Widowed Mother’s Allowance was not based on any objective and reasonable justification. The Court observed in particular that it had not been argued that the applicant did not satisfy the various statutory conditions for payment of the two benefits. The only reason for his being refused the benefits in question was that he is a man. A female in the same position would have had a right, enforceable under domestic law, to receive both. Concerning the applicant’s non-entitlement to the Widow’s Pension, the Court further found that, even if the applicant had been a woman, he would not have qualified for a Widow’s Pension under the conditions set out in the 1992 Act. Indeed, a widow in the applicant’s position would not qualify for the pension until at least 2006 and might never qualify due to the effect of other statutory conditions requiring, for example, that a claimant does not re-marry before the date on which her entitlement would otherwise crystallise. The Court therefore concluded that, since the applicant had not been treated differently from a woman in an analogous situation, no issue of discrimination contrary to Article 14 of the Convention arose regarding his entitlement to a Widow’s Pension. The Court therefore found no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 concerning the applicant’s non-entitlement to a Widow’s Pension. |
101 | Taking of children into care | THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 56. The applicant alleged that she had been deprived of all contact with her daughter and separated from her without valid reason. She maintained that the administrative authorities had decided to place her daughter in pre ‑ adoption care before the domestic courts had even ruled on whether she had been abandoned. She 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.” ... B. Merits 1. The parties' submissions (a) The applicant 64. The applicant contested the reasons given by the administrative authorities for taking her child away from her. She submitted that she had always worked and that she and her partner had sufficient income to meet her daughter's needs. With regard to her daughter's health, the applicant submitted that since September 2006 at least, the administrative authorities had known that G. had atopic seborrhoeic dermatitis (see paragraph 11 above); she and her two other children also had very dry skin in spite of treatment with various creams. In her view, therefore, the authorities' acceptance of that argument in approving G.'s placement with a foster family had been spurious. The applicant also furnished a vaccination certificate showing that G.'s vaccinations were up to date. As to her two sons, the applicant referred to the information set out at paragraph 7 above and denied that she had abandoned them. With regard to her conduct on her visits to the Granada children's home, as described in the decision of 5 October 2005, the applicant noted that even if the description were accurate – which she denied – it was of no relevance, since the child had in any case been in the Loja children's home (58 km from Granada) since 13 September 2005. Lastly, she asserted that the undiagnosed mental illness attributed to her was non-existent, referring in that regard to the report of 18 December 2009 which she had submitted in the domestic proceedings (see paragraph 40 above). In view of the foregoing, the applicant submitted that some of the administrative officials had been biased in favour of separating her from her daughter and even taking her unborn child from her. Her feelings of despair, powerlessness and anxiety were therefore understandable. Even assuming that problems had been observed in the way in which she was bringing up her child, the applicant took the view that the administrative authorities should have assisted her in overcoming them. 65. In the applicant's view, the administrative authorities had unjustly deprived her of all contact with her daughter, attempting to sever the ties between them. She further complained that the domestic courts had refused to examine the irregularities in the administrative proceedings, and pointed out that the prosecutor responsible for minors had supported her appeals. (b) The Government 66. The Government conceded that the right of parents not to be separated from their children, unless this was justified in the child's interests, formed part of the right to respect for private and family life. They cited in that connection the judgment in K.A.B. v. Spain (no. 59819/08, 10 April 2012, §§ 95-96). They further observed that the Court's task was not to take the place of the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. They referred in that regard to the case-law set forth in paragraph 71 below. 67. The Government noted that, having become aware of the child's situation, the administrative authorities had requested the courts to declare her to have been abandoned. Referring to the first-instance judgment of 18 May 2007, the relevant parts of which are set out at paragraph 30 above, they submitted that the administrative authorities had not taken that decision in an arbitrary manner or without justification. The Government observed that the administrative inquiries had shown that G.'s mother was not in a position to look after her. The possibility of placing the child in foster care within the extended family, which had at first been considered, had subsequently been rejected because the applicant's great-uncle was already overburdened. In the absence of any other options the administrative authorities had taken the decision to place the child with a foster family, a decision that had subsequently been endorsed by the courts. The mother had been represented by a lawyer throughout the judicial proceedings and her testimony had been taken into consideration, as had the evidence that had been adduced. The facts had been examined by the domestic courts in a completely non-arbitrary manner and all the decisions had been duly accompanied by reasons. In the Government's view, the child's abandonment had been genuine and had warranted the intervention of the administrative authorities, a fact subsequently acknowledged by the domestic courts. That situation had been unchanged when the applicant's appeal against her daughter's placement had been examined. 2. The Court's assessment 68. The Court reiterates that the enjoyment by parent and child of each other's company constitutes a fundamental element of family life (see Buscemi v. Italy, no. 29569/95, § 53, ECHR 1999 ‑ VI, and Saleck Bardi v. Spain, no. 66167/09, § 50, 24 May 2011, § 49). (a) General principles concerning the positive obligations of the respondent State under Article 8 of the Convention 69. As the Court has repeatedly held, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. While a decision by the competent authority resulting in a child being taken into care constitutes interference with a parent's right to respect for his or her family life (see W. v. the United Kingdom, 8 July 1987, § 59, Series A no. 121), the positive obligations inherent in the right to effective respect for private life may involve the adoption of measures 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, and Mincheva v. Bulgaria, no. 21558/03, § 81, 2 September 2010). In both cases, regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State enjoys a certain margin of appreciation (see Saleck Bardi, cited above, § 50, and K.A.B. v. Spain, cited above, § 95). 70. The Court reaffirms the principle, well-established in its case-law, according to which the Convention is intended to guarantee rights that are practical and effective (see, mutatis mutandis, Artico v. Italy, § 33, Series A no. 37). It reiterates that its task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. 71. The Court takes into consideration the fact that it is an interference of a very serious order to split up a family. Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII). It has repeatedly held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, Eriksson v. Sweden, 22 June 1989, § 71, Series A no. 156, and Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250). Taking a child into care should normally regarded as a temporary measure to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see K. and T. v. Finland [GC], no. 25702/94, § 178, ECHR 2001 ‑ VII). The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the competent authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child. Furthermore, the positive obligations are not confined to ensuring that children can rejoin their parents or have contact with them, but also extend to all the preparatory steps to be taken to that end (see, mutatis mutandis, Kosmopoulou v. Grece, no. 60457/00, § 45, 5 February 2004, and Amanalachioai v. Romania, no. 4023/04, § 95, 26 May 2009). It is the Court's task to assess whether the Spanish authorities acted in breach of their positive obligations under Article 8 of the Convention (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002 ‑ I; P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002-VI; Evans v. the United Kingdom [GC], no. 6339/05, § 76, ECHR 2007 ‑ IV; and K.A.B. v. Spain, cited above, § 98). 72. Each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it under Article 8 of the Convention, and it is for the Court to ascertain whether the domestic authorities, in applying and interpreting the applicable legal provisions, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 141, ECHR 2010, and K.A.B. v. Spain, cited above, § 115). (b) Application of these principles in the present case 73. The Court notes that on 23 August 2005 the applicant's daughter, G., who was aged three years and ten months at the time, was separated from her mother, who had visited the Motril social services department with her partner and their daughter to request assistance because of their difficult financial circumstances. Two days later, on 25 August 2005, the provincial office made a provisional finding that the child had been abandoned. On 30 August 2005 the applicant was informed that the provincial office was assuming guardianship of her daughter and that the latter was being placed in the Nuestra Señora del Pilar children's home in Granada. The Court observes that the child was transferred to a children's home in Loja (see paragraph 13 above) without the applicant being informed and without any response being given to the applicant's requests for her daughter to be transferred to a home closer to where she lived. It notes that the applicant saw her daughter for the last time on 27 September 2005. 74. In a case such as the present one the courts are faced with interests that are often difficult to reconcile, namely the interests of the child and those of its mother. In the pursuit of a balance between these different interests, the child's best interests must always be a paramount consideration (see Moretti and Benedetti, no. 16318/07, § 67, 27 April 2010). 75. In the instant case the Court observes that the administrative authorities, in finding that the child had been abandoned, cited the lack of resources of the applicant, who was experiencing extreme financial hardship (see paragraph 9 above). On the basis of these considerations, on 25 August 2005, the provincial office initiated an administrative procedure culminating in a provisional declaration that G. had been legally abandoned. The child was placed under the guardianship of the administrative authorities and placed in a children's home. According to the information available to the Court, the decision to place the child in the home, and the subsequent decisions to withdraw the applicant's contact rights once and for all and transfer the child to another home, were taken on the basis of the report of 4 October 2005 by the social worker A.L.N. (see paragraph 16 above). That report referred to the inappropriate and disrespectful attitude of the applicant, who had been taken to hospital on learning that her daughter was to be taken away from her because of her situation of extreme financial hardship. A.L.N. stated in her report that the applicant was seen on a daily basis in the vicinity of the home where her daughter was staying. The social worker proposed suspending the provisional supervised contact arrangements that had been put in place, and her proposal was acted upon. The applicant was not informed of that measure nor was she told to which home her daughter had been transferred. A.L.N. added that the mother had been given a sum of money. 76. The Court observes that the decision adopted by the provincial office on 1 February 2006 (see paragraph 22 above), endorsing the finding that the child had been abandoned, reiterated word for word the arguments set out in its previous decision of 25 August 2005 and in the report of 4 October 2005 by the social worker A.L.N. The decision stated in that regard that the mother “[had] displayed no interest, either orally or in writing, in the child's well-being”. However, the Court notes that it is not disputed that the applicant went to the Granada children's home on at least seventeen occasions, despite the fact that the home was some distance from where she lived, and observes that she was not even informed that her daughter had left there on 13 or 14 September 2005 (see paragraph 13 above). 77. The administrative procedure for the child's placement in foster care commenced on 9 June 2006, the foster parents having been selected on 2 April 2006. However, the Court observes that, according to the applicant, her daughter had told her of being taken to a house with a swimming pool, which suggests that the foster parents had entered into contact with the child long before the date that was mentioned, that is to say, a few days after she was separated from her mother, and at all events prior to 27 September 2005, the date on which the applicant and her daughter saw each other for the last time. The applicant further stated that the social workers had offered her money, a circumstance also referred to in A.L.N's report of 4 October 2005 (see paragraph 16 above). The Court finds it strange that the report referred to the money, thus confirming the applicant's statements, without specifying the reasons why the money had been offered to her. 78. In so far as the applicant complained that the domestic courts had not examined the irregularities in the administrative proceedings, the Court observes that the question whether a parent's interests have been sufficiently protected in the decision-making process will depend on the specific circumstances of each case. It notes in that regard that during the proceedings before the first-instance judges and the Audiencia Provincial, the applicant was able to present submissions in support of her case, in the context of judicial proceedings in which she was represented by a lawyer, at least from 1 February 2006 onwards (see paragraph 32 above; see also paragraph 21 above as regards the administrative proceedings). Accordingly, the Court does not discern any failings attributable to the domestic courts in that regard. 79. The Court observes that, in cases concerning family life, the breaking-off of contact with a very young child may result in the progressive deterioration of the child's relationship with his or her parent (see, among other authorities, Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 175, ECHR 2004 ‑ V (extracts), and K.A.B. v. Spain, cited above, § 103). This also holds true in the present case. 80. In view of these considerations, while reiterating that it is not its role to substitute its assessment for that of the relevant national authorities regarding the measures which should have been taken, since the authorities are in principle better placed to carry out such an assessment, the Court notes a serious lack of diligence in the procedure implemented by the authorities responsible for the child's guardianship, placement and possible adoption (see K.A.B. v. Spain, cited above, § 104). 81. In this connection and with reference to the obligation on the State to take positive measures, the Court has consistently held that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, Eriksson, cited above, § 71, Series A no. 156, and Margareta and Roger Andersson v. Sweden, 25 February 1992, § 91, Series A no. 226-A). In this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation (see Maumousseau and Washington v. France, no. 39388/05, § 83, 6 December 2007, and Mincheva, cited above, § 86). 82. The crucial question in the present case is thus whether the national authorities took all the necessary and appropriate measures that could reasonably be expected of them to ensure that the child could lead a normal family life within her own family, before placing her with a foster family with a view to her adoption. 83. In the circumstances of the case it is understandable that the social worker A.L.N. may have decided, in view of G.'s situation, to take the child into care and place her in a home. While this is an extremely serious step which has repercussions for both the child and his or her mother, the urgency of the situation and the best interests of the child may make such a decision necessary. However, the decision in question should have been followed swiftly by appropriate measures to examine in depth the child's situation and her relationship with her parents, while complying with the rules in force. The child was separated from her mother against the latter's wishes and immediately transferred to a home on the basis of a decision taken by the social worker A.L.N. This situation was especially serious given the age of the child, who was still under four. The Court is not persuaded by the reasons considered by the administrative authorities and the domestic courts as “ample justification for automatically placing [G.] under guardianship and declaring her to have been abandoned”, in particular the child's allegedly serious condition, her supposed “lack of emotional attachment” to her mother, and the claim that the latter's “violent conduct during contact visits [was] disrupting the child's stability and development” (see paragraph 30 above). The Court notes that no consideration was given at any stage of the administrative procedure to the fact that the child had been very young when she was separated from her mother, to the existing emotional bond between mother and child or to the length of time that had elapsed since their separation and the attendant consequences for both of them. 84. In contrast to other cases which the Court has been called upon to examine, the applicant's child in the present case had not been subjected to violence or to physical or psychological ill-treatment (see, conversely, Dewinne v. Belgium (dec.), no. 56024/00, 10 March 2005, and Zakharova v. France (dec.), no. 57306/00, 13 December 2005), or to sexual abuse (see, conversely, Covezzi and Morselli v. Italy, no. 52763/99, § 104, 9 May 2003). The courts did not note any lack of emotional development (see, conversely, Kutzner v. Germany, no. 46544/99, § 68, ECHR 2002 ‑ I), or any worrying health problems on the part of the child or psychological instability on the part of the parents (see, conversely, Bertrand v. France (dec.), no. 57376/00, 19 February 2002, and Couillard Maugery v. France, no. 64796/01, § 261, 1 July 2004). While it is true that in some cases declared inadmissible by the Court, the children concerned may have been placed in care because of unsatisfactory living conditions or material deprivation, this was never the sole reason on which the decision of the domestic courts was based, since other factors such as the psychological state of the parents or their inability to provide their child with emotional and educational support were also considered (see Rampogna and Murgia v. Italy (dec.), no. 40753/98, 11 May 1999; M.G. and M.T.A. v. Italy (dec.), no. 17421/02, 28 June 2005; and Wallová and Walla v. the Czech Republic, no. 23848/04, §§ 72-74, 26 October 2006). 85. In the present case the applicant's ability to provide her minor daughter, G., with educational and emotional support was not formally at issue, despite the fact that her two eldest children had been placed in the foster care of their mother's great-uncle within the extended family (see paragraph 7 above). The care order in respect of the applicant's child was made because of the applicant's difficult financial situation at the time, without any account being taken of subsequent changes in her circumstances. The Court considers that the applicant had simply been faced with a shortage of funds, a situation which the national authorities could have helped remedy by means other than the complete break-up of the family, a measure of last resort to be applied only in the most serious cases. 86. In the Court's view, the Spanish administrative authorities should have considered other less drastic measures than taking the child into care. The role of the social welfare authorities is precisely to help persons in difficulty who are not sufficiently familiar with the system, to provide them with guidance and to advise them on matters such as the different types of benefits available, the possibility of obtaining social housing and other means of overcoming their difficulties, such as those originally sought by the applicant (see paragraph 8 above). The Court also observes that both the Granada first-instance judge no. 3, in his judgment of 18 May 2007, and the Granada Audiencia Provincial, in its judgment of 27 June 2008, refused to take into account the change in the applicant's financial circumstances which she sought to invoke in order to appeal against the declaration that her daughter had been abandoned (see paragraph 28 above), confining themselves instead to upholding the declaration adopted by the administrative authorities. 87. The Court further notes that the initial finding that G. had been abandoned was reproduced automatically throughout the subsequent procedure, during which the intention of the administrative authorities to place the child elsewhere was clearly expressed. The Court finds it surprising, to say the least, that the social worker who set the procedure in motion should have requested the Red Cross to trace the applicant, stating that the family who had “adopted” G. were also “prepared to adopt [her] baby”, whom she estimated to be around nine months old since the applicant “[had been] pregnant over a year ago” (see paragraph 26 above). It observes that the decision of 14 February 2007 by which the Granada provincial office placed G. in pre-adoption foster care (see paragraph 34 above) took into account the fact that the applicant's two eldest children were in foster care with her great-uncle, as well as the possibility referred to by the social worker that the French authorities had assumed guardianship of the applicant's baby. In the Court's view, the administrative authorities simply reproduced the successive decisions without making any new findings or assessing how the circumstances might have changed on the basis of tangible evidence. 88. As regards the child's placement, the Court observes that the applicant consistently opposed the move, with the support of the prosecutor responsible for minors (see paragraphs 38 and 41 above), and that her alternative proposal for her daughter to be placed in foster care with her great-uncle was rejected by the judgment of 4 September 2009 of the Granada first-instance judge (see paragraph 39 above). The Court notes that the judge rejected this proposal on the grounds that the applicant's great ‑ uncle was not a suitable candidate for fostering minors, without giving any reasons for this assertion, but simply stating that the applicant's great ‑ uncle would be “overburdened” since he was already taking care of the applicant's other two children (see paragraph 34 above). As the applicant's great-uncle was not granted leave to take part in the proceedings, he did not have an opportunity to express his views on the subject. 89. The Court refers to its case-law, cited in paragraph 81 above, to the effect that Article 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action. It observes that, despite the fact that the prosecutor with responsibility for minors supported the applicant in opposing the child's placement in pre-adoption foster care, that option was chosen on the sole ground of the lack of contact between the child and her mother over a period of several years, although the contact between them had ceased precisely as a result of the administrative and judicial decisions taken. The Court notes that in arriving at the conclusion, in its judgment of 18 June 2010, that the psychological expert report submitted by the applicant was not sufficient to demonstrate her capacity to look after her children, and in finding that there was no convincing evidence that the lack of attention initially observed in relation to the child would not recur, the appellate court did not deem it necessary to commission other reports or expert findings on the applicant's psychological state or her ability to raise her child. The Court considers that taking a child into care should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit and that any measures of implementation of temporary care should be consistent with the ultimate aim of reuniting the natural parent and the child (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III). It notes, however, that the applicant was forced to prove that she was a good mother to her child and that when she submitted evidence to that end the competent courts considered, without any supporting arguments, that it was insufficient to outweigh the assessment of the administrative authorities, which in the meantime had been upheld by a judicial decision. 90. The Court considers that, had the applicant's vulnerability at the time her daughter was taken into care been taken into consideration, this might have played an important role in understanding the situation of the child and her mother. Likewise, the subsequent change in the applicant's financial circumstances does not appear to have been taken into consideration by the judge, who simply referred in his judgment of 4 September 2009 to “technical reports”, without giving any details as to their content, and found that it had not been proven that the applicant was “once again competent to raise the child”, although it had never been alleged that the applicant had ill-treated her daughter. 91. The Court further notes that the follow-up report issued on 29 March 2011 by the child protection services showed that, almost six years after being separated from the applicant, the child had settled well in her foster family, with whom she had lived since 16 February 2007 and who met all her material and emotional needs. The Court observes in that regard that the passage of time made it very difficult to reverse a situation which could have been remedied by means other than separating the child from her mother and declaring her to have been abandoned. 92. Hence, the length of time that elapsed – a consequence of the administrative authorities' inaction – coupled with the inaction of the domestic courts, which did not consider to be unreasonable the grounds advanced by the authorities for depriving a mother of her daughter for financial reasons alone (the applicant's mental health, which was referred to initially, was not made the subject of any expert report) were decisive factors in precluding any possibility of the applicant and her daughter being reunited as a family. The applicant and her daughter last saw each other on 27 September 2005, and since then the applicant has constantly sought access to her daughter, both before the competent administrative bodies and before the domestic courts. 93. In view of these considerations and notwithstanding the margin of appreciation enjoyed by the respondent State in the matter, the Court concludes that the Spanish authorities failed to undertake appropriate and sufficient efforts to secure the applicant's right to live with her child, in breach of her right to respect for her private and family life under Article 8. 94. Accordingly, there has been a violation of Article 8. ... | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the authorities had failed to make adequate and effective efforts to secure the applicant’s right to live with her child and had thereby breached her right to respect for her private and family life. |
689 | Incitement to racial or religious discrimination or hatred | II. RELEVANT DOMESTIC LAW A. The Penal Code 19. At the relevant time Article 266 (b) of the Penal Code provided: "Any person who, publicly or with the intention of disseminating it to a wide circle (" videre kreds ") of people, makes a statement, or other communication, threatening, insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years." Article 23, paragraph 1, reads: "A provision establishing a criminal offence shall apply to any person who has assisted the commission of the offence by instigation, advice or action. The punishment may be reduced if the person in question only intended to give assistance of minor importance or to strengthen an intent already resolved or if the offence has not been completed or an intended assistance failed." B. The 1991 Media Liability Act 20. The 1991 Media Liability Act ( Medieansvarsloven, 1991:348), which entered into force on 1 January 1992, that is after the events giving rise to the present case, lays down rules inter alia on criminal liability in respect of television broadcasts. Section 18 provides: "A person making a statement during a non-direct broadcast ( forskudt udsendelse ) shall be responsible for the statement under general statutory provisions, unless: (1) the identity of the person concerned does not appear from the broadcast; or (2) [that person] has not consented to the statement being broadcast; or (3) [he or she] has been promised that [he or she] may take part [in the broadcast] without [his or her] identity being disclosed and reasonable precautions have been taken to this effect. In the situations described in paragraph 1, sub-paragraphs (1) to (3) above, the editor is responsible for the contents of the statements even where a violation of the law has occurred without intent or negligence on his part ..." Pursuant to section 22: "A person who reads out or in any other manner conveys a text or statement, is not responsible for the contents of that text or statement." PROCEEDINGS BEFORE THE COMMISSION 22. In his application (no. 15890/89) of 25 July 1989 to the Commission the applicant complained that his conviction violated his right to freedom of expression under Article 10 (art. 10) of the Convention. 23. On 8 September 1992 the Commission declared the application admissible. In its report of 8 July 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 10 (art. 10) (by twelve votes to four). The full text of the Commission ’ s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE BY THE GOVERNMENT TO THE COURT 24. At the hearing on 20 April 1994 the Government invited the Court to hold that, as submitted in their memorial, there had been no violation of Article 10 (art. 10) of the Convention. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) 25. The applicant maintained that his conviction and sentence for having aided and abetted the dissemination of racist remarks violated his right to freedom of expression within the meaning of Article 10 (art. 10) of the Convention, which 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." 26. The Government contested this contention whereas the Commission upheld it. 27. It is common ground that the measures giving rise to the applicant ’ s case constituted an interference with his right to freedom of expression. It is moreover undisputed that this interference was "prescribed by law", the applicant ’ s conviction being based on Articles 266 (b) and 23 (1) of the Penal Code. In this context, the Government pointed out that the former provision had been enacted in order to comply with the UN Convention. The Government ’ s argument, as the Court understands it, is that, whilst Article 10 (art. 10) of the Convention is applicable, the Court, in applying paragraph 2 (art. 10-2), should consider that the relevant provisions of the Penal Code are to be interpreted and applied in an extensive manner, in accordance with the rationale of the UN Convention (see paragraph 21 above). In other words, Article 10 (art. 10) should not be interpreted in such a way as to limit, derogate from or destroy the right to protection against racial discrimination under the UN Convention. Finally it is uncontested that the interference pursued a legitimate aim, namely the "protection of the reputation or rights of others". The only point in dispute is whether the measures were "necessary in a democratic society". 28. The applicant and the Commission were of the view that, notwithstanding Denmark ’ s obligations as a Party to the UN Convention (see paragraph 21 above), a fair balance had to be struck between the "protection of the reputation or rights of others" and the applicant ’ s right to impart information. According to the applicant, such a balance was envisaged in a clause contained in Article 4 of the UN Convention to the effect that "due regard" should be had to "the principles in the Universal Declaration of Human Rights and the rights ... in Article 5 of [the UN] Convention". The clause had been introduced at the drafting stage because of concern among a number of States that the requirement in Article 4 (a) that "[States Parties] shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred" was too sweeping and could give rise to difficulties with regard to other human rights, in particular the right to freedom of opinion and expression. In the applicant ’ s further submission, this explained why the Committee of Ministers of the Council of Europe, when urging member States to ratify the UN Convention, had proposed that they add an interpretative statement to their instrument of ratification, which would, inter alia, stress that respect was also due for the rights laid down in the European Convention (Resolution (68) 30 adopted by the Ministers ’ Deputies on 31 October 1968). The applicant and the Commission emphasised that, taken in the context of the broadcast as a whole, the offending remarks had the effect of ridiculing their authors rather than promoting their racist views. The overall impression of the programme was that it sought to draw public attention to a matter of great public concern, namely racism and xenophobia. The applicant had deliberately included the offensive statements in the programme, not with the intention of disseminating racist opinions, but in order to counter them through exposure. The applicant pointed out that he tried to show, analyse and explain to his viewers a new phenomenon in Denmark at the time, that of violent racism practised by inarticulate and socially disadvantaged youths. Joined by the Commission, he considered that the broadcast could not have had any significant detrimental effects on the "reputation or rights of others". The interests in protecting the latter were therefore outweighed by those of protecting the applicant ’ s freedom of expression. In addition the applicant alleged that had the 1991 Media Liability Act been in force at the relevant time he would not have faced prosecution since under the Act it is in principle only the author of a punishable statement who may be liable. This undermined the Government ’ s argument that his conviction was required by the UN Convention and "necessary" within the meaning of Article 10 (art. 10). 29. The Government contended that the applicant had edited the Greenjackets item in a sensationalist rather than informative manner and that its news or information value was minimal. Television was a powerful medium and a majority of Danes normally viewed the news programme in which the item was broadcast. Yet the applicant, knowing that they would incur criminal liability, had encouraged the Greenjackets to make racist statements and had failed to counter these statements in the programme. It was too subtle to assume that viewers would not take the remarks at their face value. No weight could be attached to the fact that the programme had given rise to only a few complaints, since, due to lack of information and insufficient knowledge of the Danish language and even fear of reprisals by violent racists, victims of the insulting comments were likely to be dissuaded from complaining. The applicant had thus failed to fulfil the "duties and responsibilities" incumbent on him as a television journalist. The fine imposed upon him was at the lower end of the scale of sanctions applicable to Article 266 (b) offences and was therefore not likely to deter any journalist from contributing to public discussion on racism and xenophobia; it only had the effect of a public reminder that racist expressions are to be taken seriously and cannot be tolerated. The Government moreover disputed that the matter would have been dealt with differently had the 1991 Media Liability Act been in force at the material time. The rule that only the author of a punishable statement may incur liability was subject to exceptions (see paragraph 20 above); how the applicant ’ s case would have been considered under the 1991 Act was purely a matter of speculation. The Government stressed that at all three levels the Danish courts, which were in principle better placed than the European Court to evaluate the effects of the programme, had carried out a careful balancing exercise of all the interests involved. The review effected by those courts had been similar to that carried out under Article 10 (art. 10); their decisions fell within the margin of appreciation to be left to the national authorities and corresponded to a pressing social need. 30. The Court would emphasise at the outset that it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations. It may be true, as has been suggested by the applicant, that as a result of recent events the awareness of the dangers of racial discrimination is sharper today than it was a decade ago, at the material time. Nevertheless, the issue was already then of general importance, as is illustrated for instance by the fact that the UN Convention dates from 1965. Consequently, the object and purpose pursued by the UN Convention are of great weight in determining whether the applicant ’ s conviction, which - as the Government have stressed - was based on a provision enacted in order to ensure Denmark ’ s compliance with the UN Convention, was "necessary" within the meaning of Article 10 para. 2 (art. 10-2). In the second place, Denmark ’ s obligations under Article 10 (art. 10) must be interpreted, to the extent possible, so as to be reconcilable with its obligations under the UN Convention. In this respect it is not for the Court to interpret the "due regard" clause in Article 4 of the UN Convention, which is open to various constructions. The Court is however of the opinion that its interpretation of Article 10 (art. 10) of the European Convention in the present case is compatible with Denmark ’ s obligations under the UN Convention. 31. A significant feature of the present case is that the applicant did not make the objectionable statements himself but assisted in their dissemination in his capacity of television journalist responsible for a news programme of Danmarks Radio (see paragraphs 9 to 11 above). In assessing whether his conviction and sentence were "necessary", the Court will therefore have regard to the principles established in its case-law relating to the role of the press (as summarised in for instance the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59). The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (ibid.). Whilst the press must not overstep the bounds set, inter alia, in the interest of "the protection of the reputation or rights of others", it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog" (ibid.). Although formulated primarily with regard to the print media, these principles doubtless apply also to the audiovisual media. In considering the "duties and responsibilities" of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, Commission ’ s admissibility decision of 16 April 1991, application no. 15404/89, Decisions and Reports (DR) 70, p. 262). The audiovisual media have means of conveying through images meanings which the print media are not able to impart. At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the Court recalls that Article 10 (art. 10) protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see the Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 25, para. 57). The Court will look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient and whether the means employed were proportionate to the legitimate aim pursued (see the above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). In doing so the Court has to satisfy itself that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (art. 10) and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see, for instance, the Schwabe v. Austria judgment of 28 August 1992, Series A no. 242-B, pp. 32-33, para. 29). The Court ’ s assessment will have regard to the manner in which the Greenjackets feature was prepared, its contents, the context in which it was broadcast and the purpose of the programme. Bearing in mind the obligations on States under the UN Convention and other international instruments to take effective measures to eliminate all forms of racial discrimination and to prevent and combat racist doctrines and practices (see paragraph 21 above), an important factor in the Court ’ s evaluation will be whether the item in question, when considered as a whole, appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas. 32. The national courts laid considerable emphasis on the fact that the applicant had himself taken the initiative of preparing the Greenjackets feature and that he not only knew in advance that racist statements were likely to be made during the interview but also had encouraged such statements. He had edited the programme in such a way as to include the offensive assertions. Without his involvement, the remarks would not have been disseminated to a wide circle of people and would thus not have been punishable (see paragraphs 14 and 18 above). The Court is satisfied that these were relevant reasons for the purposes of paragraph 2 of Article 10 (art. 10-2). 33. On the other hand, as to the contents of the Greenjackets item, it should be noted that the TV presenter ’ s introduction started by a reference to recent public discussion and press comments on racism in Denmark, thus inviting the viewer to see the programme in that context. He went on to announce that the object of the programme was to address aspects of the problem, by identifying certain racist individuals and by portraying their mentality and social background. There is no reason to doubt that the ensuing interviews fulfilled that aim. Taken as a whole, the feature could not objectively have appeared to have as its purpose the propagation of racist views and ideas. On the contrary, it clearly sought - by means of an interview - to expose, analyse and explain this particular group of youths, limited and frustrated by their social situation, with criminal records and violent attitudes, thus dealing with specific aspects of a matter that already then was of great public concern. The Supreme Court held that the news or information value of the feature was not such as to justify the dissemination of the offensive remarks (see paragraph 18 above). However, in view of the principles stated in paragraph 31 above, the Court sees no cause to question the Sunday News Magazine staff members ’ own appreciation of the news or information value of the impugned item, which formed the basis for their decisions to produce and broadcast it. 34. Furthermore, it must be borne in mind that the item was broadcast as part of a serious Danish news programme and was intended for a well-informed audience (see paragraph 9 above). The Court is not convinced by the argument, also stressed by the national courts (see paragraphs 14 and 18 above), that the Greenjackets item was presented without any attempt to counterbalance the extremist views expressed. Both the TV presenter ’ s introduction and the applicant ’ s conduct during the interviews clearly dissociated him from the persons interviewed, for example by describing them as members of "a group of extremist youths" who supported the Ku Klux Klan and by referring to the criminal records of some of them. The applicant also rebutted some of the racist statements for instance by recalling that there were black people who had important jobs. It should finally not be forgotten that, taken as a whole, the filmed portrait surely conveyed the meaning that the racist statements were part of a generally anti-social attitude of the Greenjackets. Admittedly, the item did not explicitly recall the immorality, dangers and unlawfulness of the promotion of racial hatred and of ideas of superiority of one race. However, in view of the above-mentioned counterbalancing elements and the natural limitations on spelling out such elements in a short item within a longer programme as well as the journalist ’ s discretion as to the form of expression used, the Court does not consider the absence of such precautionary reminders to be relevant. 35. News reporting based on interviews, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of "public watchdog" (see, for instance, the above-mentioned Observer and Guardian judgment, pp. 29-30, para. 59). The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so. In this regard the Court does not accept the Government ’ s argument that the limited nature of the fine is relevant; what matters is that the journalist was convicted. There can be no doubt that the remarks in respect of which the Greenjackets were convicted (see paragraph 14 above) were more than insulting to members of the targeted groups and did not enjoy the protection of Article 10 (art. 10) (see, for instance, the Commission ’ s admissibility decisions in Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78 and 8406/78, DR 18, p. 187; and Künen v. Germany, application no. 12194/86, DR 56, p. 205). However, even having regard to the manner in which the applicant prepared the Greenjackets item (see paragraph 32 above), it has not been shown that, considered as a whole, the feature was such as to justify also his conviction of, and punishment for, a criminal offence under the Penal Code. 36. It is moreover undisputed that the purpose of the applicant in compiling the broadcast in question was not racist. Although he relied on this in the domestic proceedings, it does not appear from the reasoning in the relevant judgments that they took such a factor into account (see paragraphs 14, 17 and 18 above). 37. Having regard to the foregoing, the reasons adduced in support of the applicant ’ s conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was "necessary in a democratic society"; in particular the means employed were disproportionate to the aim of protecting "the reputation or rights of others". Accordingly the measures gave rise to a breach of Article 10 (art. 10) of the Convention. II. APPLICATION OF ARTICLE 50 (art. 50) 38. Mr Jersild sought just satisfaction under Article 50 (art. 50) of the Convention, according to which: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 39. The Government accepted parts of his claim. The Commission offered no comments. A. Pecuniary damage 40. The applicant claimed 1,000 kroner in respect of the fine imposed upon him, to be reimbursed by him to Danmarks Radio which had provisionally paid the fine for him. 41. The Government did not object and the Court finds that the amount should be awarded. B. Non-pecuniary damage 42. The applicant requested 20,000 kroner in compensation for non-pecuniary damage. He maintained that his professional reputation had been prejudiced and that he had felt distress as a result of his conviction. 43. The Court observes that the applicant still works with the Sunday News Magazine at Danmarks Radio and that his employer has supported him throughout the proceedings, inter alia by paying the fine (see paragraphs 9 and 40 above) and legal fees (see paragraph 44 below). It agrees with the Government that the finding of a violation of Article 10 (art. 10) constitutes in itself adequate just satisfaction in this respect. C. Costs and expenses 44. The applicant claimed in respect of costs and expenses: (a) 45,000 kroner for work done in the domestic proceedings by his lawyer, Mr J. Stockholm; (b) by way of legal fees incurred in the Strasbourg proceedings, 13,126.80 kroner for Mrs Johannessen, 6,900 pounds sterling for Mr Boyle and 50,000 kroner (exclusive 25% value-added tax) for Mr Trier; (c) 20,169.20 kroner to cover costs of translation, interpretation and an expert opinion; (d) 25,080 kroner, 965.40 pounds and 4,075 French francs in travel and subsistence expenses incurred in connection with the hearings before the Commission and Court, as well as miscellaneous expenses. Parts of the above costs and expenses had been provisionally disbursed by Danmarks Radio. 45. The Government did not object to the above claims. The Court considers that the applicant is entitled to recover the sums in their entirety. They should be increased by any value-added taxes that may be chargeable. | The Court drew a distinction between the members of the “Greenjackets”, who had made openly racist remarks, and the applicant, who had sought to expose, analyse and explain this particular group of youths and to deal with “specific aspects of a matter that already then was of great public concern”. The documentary as a whole had not been aimed at propagating racist views and ideas, but at informing the public about a social issue. Accordingly, the Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. |
213 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legislative situation prior to the “Salduz Act” of 2011 49. At the relevant time, the lawyer ’ s role upon the arrest of a suspect and during the judicial pre-trial investigation stage, together with the safeguards surrounding police interviews, examinations by an investigating judge and other investigative acts, were regulated as follows. 1. Arrest and remand in pre-trial detention 50. Article 12, paragraph 3, of the Constitution provided that no one could be deprived of liberty for more than twenty-four hours from the time of arrest without review by a judge. That period has recently been extended to forty-eight hours by an amendment to Article 12 on 24 October 2017. 51. An individual in respect of whom there are serious suspicions creating a presumption that he has committed an offence may be deprived of his liberty and remanded in pre-trial detention ( détention préventive ), which is governed by the Law of 20 July 1990 on pre-trial detention. 52. Upon arrest, a record must be drawn up mentioning the time and circumstances of the arrest, the decision and measures taken by the Crown Prosecutor, the manner of their notification, and the precise time at which the person is notified of the decision to arrest (sections 1 and 2 of the Law on pre-trial detention). 53. During the above-mentioned twenty-four-hour period, at the time, the person concerned would usually undergo a police interview and an initial examination by the investigating judge, after which an arrest warrant could be issued. The provision requiring the investigating judge to conduct this initial examination was section 16(2) of the Law on pre-trial detention, which read as follows prior to its amendment by the “Salduz Act” (see paragraphs 72-77 below): “(2) Unless the person charged is a fugitive or is evading arrest, the investigating judge shall, before issuing an arrest warrant, question that person about the facts forming the basis for the charges and potentially justifying an arrest warrant, and hear his or her observations. Failure to question the person charged shall entail his or her release. The investigating judge shall also notify the person charged about the possibility that an arrest warrant might be issued for his or her detention and hear his or her observations on that matter. Failure to satisfy these conditions shall entail the person ’ s release. ...” 54. It was inferred from the silence of those provisions of the Law on pre-trial detention, and from the secrecy of the preliminary police investigation and judicial pre-trial investigation (under Article 28 quinquies, § 1, first paragraph, of the Code of Criminal Procedure) that the arrested person could not be accompanied by a lawyer during the twenty-four-hour period in question. Nor was the arrested person entitled to consult with a lawyer, the right to communicate freely with a lawyer only being granted at the end of the first appearance before the investigating judge, which had to take place within a twenty-four-hour period (see paragraph 55 below). 2. Judicial pre-trial investigation phase 55. Section 20 of the Law on pre-trial detention, on which the right to consult and communicate freely with a lawyer was based, was worded as follows, in its relevant part, prior to its amendment by the “Salduz Act”: “(1) Immediately after the first interview [ sic ], the person charged may communicate freely with his or her lawyer. ... (5) The investigating judge ’ s decision to restrict visits, correspondence and telephone calls shall not alter the rights of the person charged as regards the possibilities of consulting with his or her lawyer. ... ” 56. That provision, appearing in Chapter III of the Law on arrest warrants issued by the investigating judge, referred not to the first police interview but to the first examination by the investigating judge. 57. During that first appearance, the investigating judge was required to notify the person charged that he had the right to choose a lawyer. If the person did not choose a lawyer, the investigating judge would inform the Chair of the Bar Council or his deputy (section 16(4) of the Law on pre ‑ trial detention). 58. Free communication consisted mainly in the possibility for the lawyer to visit his client in prison, to read the investigation file made available to the accused and to counsel for a period of two days prior to any hearings (section 21(3) of the Law on pre-trial detention) and to assist the client on a monthly basis before the chambre du conseil of the Court of First Instance in order to discuss any serous indications of guilt and/or the need to maintain the detention measure (section 22, fourth paragraph, of the Law). No later than five days after the notification of the arrest warrant and every month thereafter, or in the case of serious charges every three months (section 22, first and second paragraphs, of the Law), the competent chambre du conseil had to rule on the need to extend the detention. During that hearing the person charged was assisted by his lawyer and was entitled to ask the investigating judge for additional acts to be performed (Article 61 quinquies, § 1, of the Code of Criminal Procedure). 59. The right to communicate with the lawyer did not mean that the latter could attend any subsequent police interviews or examinations by an investigating judge or any other investigative acts during the judicial investigation stage such as reconstructions or confrontations. The Court of Cassation took the view that the secrecy imposed by Article 28 quinquies § 1, first paragraph, and Article 57 § 1, first paragraph, of the Code of Criminal Procedure precluded, as a rule, the presence of the lawyer at any acts of the preliminary police investigation or judicial pre ‑ trial investigation (see, among other authorities, Court of Cassation, 26 May 2010, in the applicant ’ s case – paragraph 48 above). 60. The main exception was the possibility for the lawyer to attend the recapitulatory examination by the investigating judge, as provided for in section 22, second paragraph, of the Law on pre-trial detention, which read as follows before being amended by the “Salduz Act”: “At the request of the person charged or his counsel, the investigating judge shall summon the person charged ten days prior to each appearance before the chambre du conseil, or the Indictment Division ruling in cases remitted to it in accordance with section 31(4), for a recapitulatory examination; the clerk shall immediately notify the summons, in writing or by fax, to the lawyer of the person charged and to the Crown Prosecutor, both of whom may attend the said examination.” 3. Formalities to be observed during interviews and examinations 61. Section 16(7) of the Law on pre-trial detention, prior to its amendment by the “Salduz Act”, provided that the record of the first examination by the investigating judge of the person charged, together with the records of all police interviews with the person charged between the time he was deprived of liberty and his first appearance before the investigating judge, had to mention the time at which the interview started and finished, together with the time of the beginning and end of any interruptions. On the notification of the arrest warrant, a copy of the statement to the investigating judge and copies of other documents listed in section 16(7) ( cited above ) were to be given to the person charged in accordance with section 18(2) of the Law. 62. Article 47 bis of the Code of Criminal Procedure further laid down certain rules to be complied with by the police or prosecutor for the organisation of any interviews during the preliminary investigation phase and for the drafting of the interview records. Under Article 70 bis of the Code of Criminal Procedure, the same rules applied to questioning at the pre-trial investigation stage, in particular the examinations by the investigating judge. 63. Prior to its amendment by the “Salduz Act”, Article 47 bis of the Code of Criminal Procedure read as follows: “For the purposes of interviews conducted with any persons questioned in any capacity whatsoever, the following minimum rules shall be complied with: 1. At the beginning of any interview, the person interviewed shall be informed: (a) that he or she may request that all questions put and answers given be recorded verbatim; (b) that he or she may request any investigative act or interview; (c) that his or her statements may be given in evidence at trial. ...” 64. The express notification to the person interviewed that his or her statements might be given in evidence at trial was regarded as indirectly enshrining the right to remain silent in Belgian legislation. Such right was not provided for expressly in Belgian law at the relevant time, even though it was one of the defence rights and, according to the Court of Cassation, was part of the general principles of law (Court of Cassation, 13 May 1986, Pasicrisie, 1986-I, no. 558). 65. Article 47 bis of the Code of Criminal Procedure also provided that at the end of the interview, the person interviewed had to be able to read over the statement, unless he or she asked for it to be read out. He or she then had to be asked if the statement should be corrected or complemented. The person interviewed was free to sign the statement or to refuse to do so. He or she could also ask to write it out himself or herself and to request that it be attached to the interview record. B. Development of the Court of Cassation ’ s case-law after the Salduz judgment 66. Following the Salduz judgment, the Court of Cassation was, on a number of occasions, called upon to examine – in cases concerning both pre-trial detention and the merits of a criminal prosecution – legal argument based on an alleged violation of Article 6 §§ 1 or 3 (c) of the Convention on the ground that the suspect had not had legal assistance during his or her time in police custody or when questioned by the police or investigating judge. 67. The Court of Cassation took the view that, although Belgian law did not provide for the presence of a lawyer alongside a suspect from the time of his deprivation of liberty, that did not automatically give rise to a violation of the right to a fair trial. In the court ’ s view, that restriction had to be assessed in the light of the proceedings as a whole and of the statutory safeguards generally afforded to the accused in order to ensure respect for his or her defence rights from the time of the decision to prosecute. In that connection the court referred in particular to the following safeguards provided for under Belgian law: (a) the formalities imposed for the interview of the suspect under Article 47 bis of the Code of Criminal Procedure; (b) the brevity of the police custody period under the Constitution (Article 12 § 3); (c) the immediate remittance to the person charged, upon notification of the arrest warrant, of his interview records; (d) the right of the person charged to communicate immediately with his lawyer after his first examination by the investigating judge; (e) access to the file prior to appearance before the pre-trial court; (f) the lawyer ’ s presence at the recapitulatory examination. 68. The Court of Cassation would then verify in concreto if the suspect had made self-incriminating statements without legal assistance during the first police interviews and examinations by the investigating judge, and if so whether those statements had been used by the trial court to find the defendant guilty, and more generally, whether the initial absence of legal assistance had adversely affected the fairness of the trial in the light of the proceedings as a whole. 69. In a judgment of 5 May 2010 the Court of Cassation thus saw fit, on the first appeal it had received against such a conviction, to examine “whether the interviews [with the accused], without a lawyer being present, conducted by the federal criminal investigation police ... and by the investigating judge ... [had] had any impact on the conduct of the trial” (Court of Cassation 5 May 2010 P.10.0257.F; see also Court of Cassation, 26 May 2010 (in the applicant ’ s case, see paragraph 48 above), and Court of Cassation, 22 June 2010, P.10.0872.N). 70. In a judgment of 15 December 2010 ( P.10.0914.F ), the Court of Cassation quashed for the first time, on account of a violation of Article 6 of the Convention, a trial court decision relying on self-incriminating statements given to the police by a suspect in police custody without any possibility of legal assistance. In response to the appellant ’ s ground of appeal criticising the judgment for basing his conviction in particular on the statements he had made to the investigators and to the investigating judge in the interviews conducted during the twenty-four-hour period after being taken into custody, the Court of Cassation found, in particular, as follows: “The right to a fair trial, as enshrined in Article 6 § 1 of the Convention ..., implies that the person arrested or held at the disposal of the courts should have the effective assistance of a lawyer during the police interview which takes place within twenty ‑ four hours after he or she is taken into custody, unless it is shown, in the light of the particular circumstances of the case, that there are compelling reasons to restrict such right. In so far as it allows such access to a lawyer only after the first examination by the investigating judge, section 20(1) of the Law of 20 July 1990 on pre-trial detention must be regarded as incompatible with Article 6 of the Convention. The fairness of a criminal trial should be assessed in the light of the proceedings as a whole, by ascertaining whether the defence rights have been observed, examining whether the person charged has had the possibility of challenging the authenticity of the evidence and of opposing its use, verifying whether the circumstances in which evidence for the prosecution has been obtained cast doubt on its credibility or accuracy, and assessing the influence of any unlawfully obtained evidence on the outcome of the criminal proceedings. The evidence in the file shows that the appellant challenged, before the trial court, the charges of rape and indecent assault laid against him and of which the first respondent claimed to have been the victim at a time when, as a minor, he could not legally have consented to the sexual acts thus characterised. In support of their conviction as to the appellant ’ s guilt, the judges of the Court of Appeal noted that, until his release by the investigating judge, the suspect had gradually confessed to the acts described by the complainant before calling everything into question and seeking his acquittal in the trial court. To explain this change of position, the judgment took the view ... that the appellant had probably not perceived the significance in criminal law of the acts that he had admitted committing, being unaware that oral penetration was also characterised as rape. Therefore in giving the statement in question, during police custody and without legal assistance, the suspect had incriminated himself because he did not have the legal knowledge which would have enabled him to put his words into a different perspective. The appellant ’ s confession and the reason for its withdrawal justify, according to the judgment, the fact of not giving credence to his claims that the accusations against him were mere fiction. Self-incriminating statements given to the police within twenty-four hours of being taken into custody by a suspect who, in the absence of a lawyer, may not, according to the Court of Appeal, have understood the legal consequences of his words, were thus taken into consideration by that court in finding the criminal complaint credible and accordingly in concluding that the prosecution case was made out. Being based on that reasoning, the decision breaches Article 6 of the Convention.” 71. Lastly, it is noteworthy that in a judgment of 31 October 2017 (P.17.0255.N), the Court of Cassation took the view that in order to gauge the impact of the lawyer ’ s absence from interviews during the judicial pre ‑ trial investigation (interviews which had been conducted in 2010, and thus after the Salduz judgment, but before the 2011 “Salduz Act”), the trial court had to take account of a non-exhaustive list of factors enumerated by the Court as set out in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, § 274, 13 September 2016 ). C. The “Salduz Act” and “Salduz bis Act” 72. The reform of the domestic law began with the enactment of the Law of 13 August 2011 (known as the “Salduz Act”), which entered into force on 1 January 2012, amending the Code of Criminal Procedure and the Law of 20 July 1990 on pre-trial detention. The relevant provisions were again amended by the Law of 21 November 2016 on certain rights of persons during questioning (known as the “Salduz bis Act”), which entered into force on 27 November 2016. This new Law transposes into domestic law the provisions of Directive 2013/48/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ 2013, L 294, p. 1 – see paragraph 82 below). 73. Under Article 47 bis § 2 of the Code of Criminal Procedure, as replaced by the “Salduz Act”, any person interviewed as a suspect, provided that the potential charges concern an offence that could justify an arrest warrant, is entitled to a confidential consultation with a lawyer prior to the first interview. The “Salduz bis Act” has added the possibility for the suspect to be assisted by a lawyer while being interviewed. 74. Article 47 bis § 2 of the Code of Criminal Procedure, as replaced by the “Salduz Act”, also provides that before being interviewed, a suspect must be informed that his statements may be used in evidence and that he cannot be compelled to incriminate himself. The “Salduz bis Act” has added that the suspect may choose, after giving his identity, to make a statement, to answer the questions put to him, or to remain silent. 75. For persons in custody, section 2 bis of the Law on pre-trial detention, as inserted by the “Salduz Act”, provides that the police or judicial authorities must enable the arrested person to exercise his or her right to prior consultation with a lawyer of his or her choosing, or a duty lawyer assigned by the Bar. 76. Under that same section, persons in custody are also entitled to legal assistance when questioned by the police or a judge during the twenty-four hour period following their arrest. 77. The lawyer ’ s role during an interview consists in ensuring that his client ’ s rights are upheld. The “Salduz bis Act” has extended that role in particular to enable intervention by the lawyer for the purpose of requesting investigative acts or clarifications, in addition to making observations. D. The possibility of reopening criminal proceedings 78. In Belgium, Article 442 bis of the Code of Criminal Procedure enables convicted persons to apply to the Court of Cassation for the reopening of proceedings following a judgment of the Court finding a violation of the Convention. The provision reads as follows: “If a final judgment of the European Court of Human Rights has found that there has been a breach of the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto ..., an application may be made for the reopening – in respect of criminal matters alone – of the proceedings that resulted in the applicant ’ s conviction in the case before the European Court of Human Rights or in the conviction of another person for the same offence on the basis of the same evidence.” III. RELEVANT EU AND INTERNATIONAL LAW MATERIAL A. European Union law 1. The right to be informed 79. On 22 May 2012 the European Union adopted Directive 2012/13/EU of the Parliament and the Council on the right to information in criminal proceedings (OJ L 142, p. 1). As can be seen from Recitals 14 and 18 of this Directive, it is founded upon the rights laid down in the Charter of Fundamental Rights of the European Union (“the Charter”), and in particular Articles 6, 47 and 48 thereof, building upon Articles 5 and 6 of the Convention as interpreted by the Court. In addition, the Directive explicitly establishes the right to information about procedural rights, as “inferred from the case-law” of the Court (Recital 18). 80. Article 1 of Directive 2012/13/EU clarifies that the right to information has two aspects: information on procedural rights and information on the accusation. Pursuant to Article 2 § 1, the Directive applies from the time persons are made aware by the competent authorities of a member State that they are suspected or accused of having committed a criminal offence. Such persons must be provided promptly with information concerning at least the five procedural rights listed in Article 3 § 1 of the Directive, namely: the right of access to a lawyer; the right to free legal advice; the right to be informed of the accusation; the right to interpretation and translation; and the right to remain silent. Article 8 § 2 provides that suspects must have the right under national law to challenge any failure to provide the requisite information. The Directive, of which the relevant provisions have not yet given rise to interpretation by the Court of Justice of the European Union (CJEU), does not address how evidence obtained before the suspect has been informed of his or her procedural rights should be treated in any subsequent criminal proceedings. 81. Directive 2012/13, which had to be transposed by 2 June 2014, applies to all EU Member States except Denmark. 2. The right of access to a lawyer 82. Directive 2013/48/EU ( cited above ) lays down minimum rules concerning the right of access to a lawyer in criminal proceedings and in proceedings for the execution of a European arrest warrant. In doing so, it promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48 thereof, building upon Articles 3, 5, 6 and 8 of the Convention, as interpreted by this Court (Recital 12). In its Preamble the Directive explains, by reference to case-law of the Court, that where a person other than a suspect or accused person, such as a witness, becomes a suspect or accused person, that person should be protected against self-incrimination and has the right to remain silent. In such cases, questioning by law enforcement bodies should be suspended immediately and may only be continued if the person concerned has been made aware that he or she is a suspect or accused person and is able to fully exercise the rights provided for in the Directive (Recital 21). In addition, the member States should ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when they are questioned by the police or by another law enforcement or judicial authority, including during court hearings (Recital 25). 83. Article 2 § 1 of the Directive provides that the rights in the Directive apply to: “suspects or accused persons ... from the time when they are made aware by the competent authorities ..., by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty.” 84. Article 3 of Directive 2013/48/EU, entitled “The right of access to a lawyer in criminal proceedings”, reads as follows: “1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively. 2. Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest: (a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 3; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. 3. The right of access to a lawyer shall entail the following: (a) Member States shall ensure that suspects or accused persons have 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; (b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned; (c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence ‑ gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned: (i) identity parades; (ii) confrontations; (iii) reconstructions of the scene of a crime. 4. Member States shall endeavour to make general information available to facilitate the obtaining of a lawyer by suspects or accused persons. Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9. ... 6. In exceptional circumstances and only at the pre-trial stage, Member States may temporarily derogate from the application of the rights provided for in paragraph 3 to the extent justified in the light of the particular circumstances of the case, on the basis of one of the following compelling reasons: (a) where there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person; (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to criminal proceedings.” 85. Article 12 § 2 addresses the question of remedies and provides that, without prejudice to national rules and systems on the admissibility of evidence, member States must ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3 § 6 ( cited above ), the rights of the defence and the fairness of the criminal proceedings are respected. 86. Directive 2013/48/EU, which had to be transposed by 27 November 2016, applies to all EU member States except for the United Kingdom, Ireland and Denmark. B. International and comparative law 87. Article 14 of the International Covenant on Civil and Political Rights of 1966 (“the Covenant”) guarantees the right to a fair trial. Article 14 § 3 (d) provides in particular that everyone charged with a criminal offence has the right, in full equality, to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. 88. In a number of cases the Human Rights Committee has found a violation of Article 14 § 3 (d) of the Covenant on account of a failure to provide sufficient information to an accused about the right to legal assistance (see, for example, Saidova v. Tajikistan, 2004, 964/2001, and Khoroshenko v. Russian Federation, 2011, 1304/2004). 89. The Court would further refer to the other international and comparative law material presented in Ibrahim and Others ( cited above, §§ 218-33). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 90. The applicant alleged that the fact of being deprived of access to a lawyer while he was in police custody, without being given sufficient information on his right to remain silent and not to incriminate himself, together with the fact that no lawyer was present during the subsequent police interviews, examinations by an investigating judge and other investigative acts in the course of the pre-trial investigation, had breached his right to a fair trial as secured by Article 6 §§ 1 and 3 (c) of the Convention. Those provisions read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (c) to defend himself in person or through legal assistance of his own choosing 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. Admissibility 91. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 92. The applicant complained that when he had been questioned on 31 December 2007 by the Belgian police, while in police custody, and later by the investigating judge, no lawyer had been present. The fact that he had received legal assistance during the proceedings in France was of no consequence, in his view, as those proceedings had concerned the execution of the European arrest warrant and not the offences with which he had been charged in Belgium. Referring to the Court ’ s case-law, in particular Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) and Dayanan v. Turkey (no. 7377/03, 13 October 2009 ), he submitted that the absence of a lawyer at that stage of the proceedings stemmed from the application of Belgian law which, at the time of the proceedings against him, did not meet the requirements of that case-law as it did not, on account of the secrecy of the judicial investigation, grant legal assistance to a person in custody until after the investigating judge ’ s decision on pre ‑ trial detention. 93. As Article 47 bis of the Code of Criminal Procedure did not provide for the notification to a suspect of his right to remain silent, the absence of a lawyer at the interview and examination of 31 December 2007 meant that the applicant had not been specifically informed of that right or of the privilege against self-incrimination. In view of his limited intellectual capacities he had not been able, on his own, to infer the right to remain silent from the caution given to him that his statements could be used in evidence. Moreover, while the applicant had signed the interview record, which mentioned the caution that his statements could be used in evidence, in the absence of a lawyer there was no guarantee that this caution had indeed been read out to him prior to the interview. 94. The applicant pointed out that, while the Belgian Court of Cassation ’ s case-law had evolved favourably, taking account of the Salduz judgment, that court had never reached the conclusion that the legislation in itself entailed a violation of the right to a fair trial. Moreover, it was only after the judgment of 15 December 2010 (see paragraph 70 above), and thus subsequent to the applicant ’ s case, that the Court of Cassation had struck down judgments of the trial courts based on self-incriminating statements made during the initial interviews without a lawyer being present. 95. In the applicant ’ s view there had been no compelling reason – and no such reason had even been invoked – to deny him his right to legal assistance. The restriction on the right of access to a lawyer had been the norm at the time and had lasted throughout the pre-trial investigation. In his case, no individual assessment had been made and there had been no urgent need to protect a person from serious harm to that person ’ s life or liberty or from serious injury. 96. As the Court had confirmed in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, § 265, 13 September 2016 ), the lack of compelling reasons entailed a presumption of a violation of Article 6. Where the person was not notified of the right to remain silent or of the privilege against self-incrimination, it was even more difficult for the Government to rebut this presumption (ibid., § 273). 97. A finding that there was a general and mandatory statutory restriction on legal assistance should suffice, in the applicant ’ s view, on the basis of the case-law he had cited, for a breach of the requirements of Article 6 to be established, even where the suspect had denied the allegations or exercised his right to remain silent. He pointed out that such an approach had been followed by the Court in a number of cases ( Bouglame v. Belgium (dec.), no. 16147/08, 2 March 2010; Simons v. Belgium (dec.), no. 71407/10, 28 August 2012; Navone and Others v. Monaco, nos. 62880/11 and 2 others, 24 October 2013; and Borg v. Malta, no. 37537/13, 12 January 2016). 98. While the Ibrahim and Others judgment allowed for the respondent Government to demonstrate convincingly why the overall fairness of a trial had not been irretrievably prejudiced by the restriction on access to legal advice, that possibility could only, in the case of a statutory restriction, be afforded on an exceptional basis in the light of the particular circumstances. 99. The applicant submitted, incidentally, that the restriction on his right to legal assistance had irretrievably prejudiced the fairness of his trial as a whole. That conclusion followed from an examination of some of the criteria enumerated in Ibrahim and Others. First, the applicant argued that he had been in a particularly vulnerable situation as a result of his detention and that it had been aggravated by his very poor verbal skills. He then pointed out that denials and inconsistent statements, as in the present case, could be detrimental to the accused, especially where they were used to find that the suspect had changed his version of events. Moreover, as the investigating judge had ordered a psychiatric assessment, at the end of his examination on 31 December 2007, the applicant questioned whether he had really been in a fit state to be questioned. He submitted that, while the reasons for his conviction did not directly reproduce his statements, his various interviews and examinations had been cited at some length in the indictment, a key document that had been read to the jury at the start of the trial and handed to them. Certain assertions by the jury had been derived from those statements, for example his statement to the effect that he knew C.L. was pregnant and that he had struck her. Lastly, it was appropriate in the applicant ’ s view to note from the hearing record of 1 February 2010 that the President of the Assize Court had not given any warning to the jury as to the weight they should attach, in their deliberations, to the various statements made by him. (b) The Government 100. The Government acknowledged that, as a result of the applicable Belgian law at the material time, the applicant had not been able to consult with a lawyer while he was in police custody and no lawyer had been present during the ensuing interviews and examinations or at the reconstruction. However, it could not automatically be inferred that the applicant ’ s trial had not been fair. It was necessary to assess the overall fairness of the proceedings in accordance with the Court ’ s method and case ‑ law which, as reiterated in the Ibrahim and Others judgment, showed that the right to legal assistance was not an end in itself. 101. In the present case, that assessment involved first verifying the proceedings at their earliest stages. It was the applicant ’ s arrest by the French authorities which had to be regarded, in the Government ’ s view, as the starting-point for the safeguards enumerated in Article 6. It was noteworthy that the applicant had immediately been granted, upon his arrest by the French gendarmerie, the possibility afforded under French law to be assisted by a lawyer while in police custody. The fact that this possibility was not recognised under Belgian law at the material time was thus of little consequence. Moreover, the fact that the applicant had expressly waived legal assistance at the time of his arrest by the French authorities meant that any restriction of the right of access to a lawyer (the Government referred to Simeonovi v. Bulgaria [GC], no. 21980/04, § 128, 12 May 2017) could be ruled out. The applicant had subsequently been assisted by a lawyer once he had asked the French authorities to find him one. 102. The only gap in the continuous legal assistance enjoyed by the applicant since his arrest in France concerned the period from the interview and examination of 31 December 2007, following his surrender to the Belgian authorities, when he had ceased to be assisted by the French lawyer, until the time when he came into contact with a Belgian lawyer. The Government acknowledged that there was some uncertainty as to whether the applicant had been advised by this new lawyer at the time of the police interview on 11 January 2008. However, there was no doubt that after the period of police custody on 31 December 2007, the investigating judge had contacted the Chair of the Bar to arrange for the appointment of a lawyer. Subsequently, and throughout his pre-trial detention, the applicant had been able, in accordance with Belgian law as it stood at the time, to make unlimited use of his right to confer confidentially with his lawyer in order to prepare for questioning and organise his defence. 103. In order to show that the proceedings had been fair in spite of any shortcomings in the safeguards afforded at the early stages, the Government emphasised, first, that the applicant had clearly been aware of his rights when he had initially come before the Belgian authorities. He had provided them with a constructed version of the facts and had put forward a defence strategy consisting in pleading his innocence and denying all the charges then laid against him. That was a result of the fact that he had received legal assistance in France prior to his surrender and had previously had dealings with the Belgian justice system. Nor should it be overlooked that the interviews conducted while he was in police custody on 31 December 2007 had served mainly to determine whether his detention was absolutely necessary for public safety, thus justifying the issuance of an arrest warrant. Accordingly, in view of the gravity of the charges, it could be considered that the presence of a lawyer would not have changed the outcome of the interviews. 104. In addition, as shown by the record of each interview, the applicant had been informed of his rights in accordance with Article 47 bis of the Code of Criminal Procedure. He had fully availed himself, from the time of his first statements, of his right to silence, including the right to be unresponsive, to lie, and to select or conceal facts. He had also been informed of the possibility of adducing evidence and of requesting any additional investigative acts. No correlation, whether positive or negative, could, moreover, be observed between the version of the events adopted by the applicant at any given time and the presence or absence of a lawyer. 105. The Government submitted, secondly, that with the single exception of the confession that he had taken a document from the file during his interview on 17 March 2008, the applicant had never made any self-incriminating statements. That point was decisive in assessing the overall fairness of the proceedings. Moreover, it could be seen from the committal judgment of the Indictment Division of 31 August 2009 and the Assize Court ’ s sentencing judgment of 10 February 2010 that the accepted indications of the applicant ’ s guilt were derived primarily from witness statements, investigators ’ findings, real evidence and forensic medical and psychiatric assessments, and that his statements had not been used against him by the trial court. 106. Thirdly, it transpired from the settled case-law of the Court of Cassation, both before and after the judgment delivered against the applicant, that it applied an exclusionary rule which consisted in systematically quashing convictions based on self-incriminating statements made in the absence of a lawyer. The Court of Cassation had thus not waited for the legislature to change the Belgian statutory framework in order to transpose the Salduz case-law and, taking the view that the restriction on legal assistance had to be assessed in the light of the proceedings as a whole, it verified that any self-incriminating statements made in the absence of a lawyer could not be used by the trial court for the defendant ’ s conviction. While the Court of Cassation had not quashed the Assize Court judgments in the present case, that was only after examining the situation as a whole and finding that the applicant ’ s right to a fair trial had not been prejudiced by the application of Belgian law. The applicant ’ s conviction had indeed been primarily based on evidence other than the statements in question. 107. Lastly, in addition to the fact that the applicant could not rely on any particular vulnerability or on any allegation of pressure on the part of the police, he had been afforded many other safeguards, as listed by the Court of Cassation in its judgment of 26 May 2010, the practical impact of which had been evident throughout the proceedings, in the Government ’ s view. The right to receive copies of the documents in the file had enabled him to organise and devise the best possible defence, through unlimited consultations with his lawyer; the systematic copies of interview records had helped him to keep to the same version of events, albeit contradicting that of the witnesses; and the judicial investigation had been subject to review by the Indictment Division, before which the applicant had been entitled to challenge the legality of the investigation at any time. In addition, all the decisions taken and all the warrants issued against the applicant had been fully reasoned and he had also enjoyed the procedural safeguards surrounding trial in the Assize Court. 2. The third-party intervener 108. Fair Trials International (FTI) was of the opinion that the present case provided the Court with an opportunity to clarify its approach on a number of points. 109. Firstly, when it came to assessing the conformity of a “systemic” statutory restriction with Article 6 §§ 1 and 3 (c), the Court should clarify whether it would follow its previous approach in A.T. v. Luxembourg (no. 30460/13, 9 April 2015) and examine, through an overall fairness assessment, whether any incriminating statements, in a broad sense, obtained without a lawyer were used for the conviction. If that approach were to be taken, FTI suggested that, in line with the subsidiarity principle, the Court should only proceed to conduct its own assessment of the use made of such statements if, in the specific case, the problem had been identified and Convention compliance assessed by the national courts, regardless of the domestic law. 110. Secondly, as to the use of self-incriminating statements, the Court should take the opportunity in the present case to reiterate that when evidence taken without a lawyer – whether or not the restriction was statutory in origin – had any adverse effect at trial, this would cause irretrievable prejudice to the rights of the defence. 111. In FTI ’ s view, the judgment in Ibrahim and Others had departed from the post- Salduz line by asserting that, even in cases where there were no compelling reasons, there was no reason in principle why such statements should not be used for a conviction, provided that the overall fairness of the proceedings was not affected. 112. FTI did not support this more flexible approach, arguing that it ran counter to the developments in European legal systems since Salduz. The immediate consequence of the Ibrahim and Others judgment had been to legitimise situations in which the use of evidence obtained in the absence of a lawyer was tolerated. Moreover, the application of the Ibrahim test – a discretionary substantive assessment based on ten non-exhaustive factors – was liable to lead to varying interpretations and results, as shown by the lack of consensus in the Grand Chamber ’ s Simeonovi judgment on the overall fairness issue. 113. To avoid any regression, FTI asked the Court to confirm that, in cases where an overall fairness assessment showed that there was a link, however tenuous, between the absence of a lawyer and the outcome of the trial, it would be necessary to consider that the early breach had “crystallised” and to find a violation, regardless of the extent of any prejudice caused to the overall fairness of the proceedings. 3. The Court ’ s assessment (a) Preliminary comments 114. The Court observes, by way of introduction, that the Grand Chamber has already had occasion, in a number of cases, to rule on the right of access to a lawyer under Article 6 §§ 1 and 3 (c) of the Convention (see, as recent examples, Dvorski v. Croatia [GC], no. 25703/11, ECHR 2015; Ibrahim and Others, cited above; and Simeonovi, cited above ). 115. In the present case, as can be seen from paragraphs 3 and 90 above, the applicant complained first that he had not had access to a lawyer while in police custody and, in addition, that even once he had been able to consult with a lawyer, his lawyer could not assist him during his police interviews or examinations by the investigating judge or attend a reconstruction of events. 116. The applicant ’ s complaints concern statutory restrictions on the right of access to a lawyer, the first alleged restriction being of the same nature as that complained of in the Salduz judgment. It should be pointed out that, further to that judgment, the Grand Chamber provided significant clarification on the right of access to a lawyer in its Ibrahim and Others judgment, even though the restriction complained of in the latter case was not one of a general and mandatory nature. The present case thus affords the Court an opportunity to explain whether that clarification is of general application or whether, as claimed by the applicant, the finding of a statutory restriction is, in itself, sufficient for there to have been a breach of the requirements of Article 6 §§ 1 and 3 (c). 117. The present case also raises questions concerning the content and scope of the right of access to a lawyer. The Court observes that, since the Salduz judgment, its case-law has evolved gradually and that the contours of that right have been defined in relation to the complaints and circumstances of the cases before it. The present case thus affords an opportunity to restate the reasons why this right constitutes one of the fundamental aspects of the right to a fair trial, to provide explanations as to the type of legal assistance required before the first police interview or the first examination by a judge. It also allows the Court to clarify whether the lawyer ’ s physical presence is required in the course of any questioning or other investigative acts carried out during the period of police custody and that of the pre-trial investigation (as conducted by an investigating judge in the present case). 118. Those questions will be examined in the light of the general principles set out below. (b) General principles (i) Applicability of Article 6 in its criminal aspect 119. The Court reiterates that the protections afforded by Article 6 §§ 1 and 3 (c), which lie at the heart of the present case, apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Ibrahim and Others, cited above, § 249, and Simeonovi, cited above, §§ 110-11, and the case-law cited therein). (ii) General approach to Article 6 in its criminal aspect 120. The fairness of a criminal trial must be guaranteed in all circumstances. However, what constitutes a fair trial cannot be the subject of a single unvarying rule but must depend on the circumstances of the particular case (see Ibrahim and Others, cited above, § 250). The Court ’ s primary concern, in examining a complaint under Article 6 § 1, is to evaluate the overall fairness of the criminal proceedings (see, among many other authorities, Bykov v. Russia [ GC], no. 4378/02, §§ 94-105, 10 March 2009; Taxquet v. Belgium [GC], no. 926/05, §§ 84 and 93-100, ECHR 2010; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118, and 152-65, ECHR 2011; Dvorski, cited above, §§ 81 ‑ 82 and 103-13; Schatschaschwili v. Germany [GC ], no. 9154/10, §§ 101 and 161-65, ECHR 2015; Blokhin v. Russia [GC], no. 47152/06, §§ 194 and 211-16, 23 March 2016; Lhermitte v. Belgium [GC], no. 34238/09, §§ 69 and 83-85, 29 November 2016; Ibrahim and Others, cited above, §§ 274, 280-94, and 301-11; and Correia de Matos v. Portugal [GC], no. 56 402 /1 3, §§ 118, 120, and 160-68, 4 April 2018). 121. As the Court has found on numerous occasions, compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1 (see, for example, Salduz, cited above, § 50; Al ‑ Khawaja and Tahery, cited above, § 118; Dvorski, cited above, § 76; Schatschaschwili, cited above, § 100; Blokhin, cited above, § 194; and Ibrahim and Others, cited above, § 251). 122. Those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Ibrahim and Others, cited above, §§ 251 and 262, and Correia de Matos, cited above, § 120). (iii) Right of access to a lawyer 123. The right of everyone “charged with a criminal offence” to be effectively defended by a lawyer, guaranteed by Article 6 § 3 (c), is one of the fundamental features of a fair trial (see Salduz, cited above, § 51, and Ibrahim and Others, cited above, § 255). (α) Starting-point of the right of access to a lawyer 124. Where a person has been taken into custody, the starting-point for the right of access to a lawyer is not in doubt. The right becomes applicable as soon as there is a “criminal charge” within the meaning given to that concept by the Court ’ s case-law (see paragraph 119 above) and, in particular, from the time of the suspect ’ s arrest, whether or not that person is interviewed or participates in any other investigative measure during the relevant period (see Simeonovi, cited above, §§ 111, 114 and 121). (β) Aims pursued by the right of access to a lawyer 125. Access to a lawyer at the pre-trial stage of the proceedings also contributes to the prevention of miscarriages of justice and, above all, to the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Salduz, cited above, §§ 53-54; Blokhin, cited above, § 198; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112). 126. The Court has acknowledged on numerous occasions since the Salduz judgment that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody. Such access is also preventive, as it provides a fundamental safeguard against coercion and ill-treatment of suspects by the police (see Salduz, cited above, § 54; Ibrahim and Others, cited above, § 255; and Simeonovi, cited above, § 112). 127. The Court has also recognised that the vulnerability of suspects may be amplified by increasingly complex legislation on criminal procedure, particularly with regard to the rules governing the gathering and use of evidence (see Salduz, cited above, § 54, and Ibrahim and Others, cited above, § 253). 128. Lastly, one of the lawyer ’ s main tasks at the police custody and investigation stages is to ensure respect for the right of an accused not to incriminate himself (see Salduz, cited above, § 54; Dvorski, cited above, § 77; and Blokhin, cited above, § 198) and for his right to remain silent. 129. In this connection, the Court has considered it to be inherent in the privilege against self-incrimination, the right to remain silent and the right to legal assistance that a person “charged with a criminal offence”, within the meaning of Article 6, should have the right to be informed of these rights, without which the protection thus guaranteed would not be practical and effective (see Ibrahim and Others, cited above, § 272, and Simeonovi, cited above, § 119; the complementarity of these rights had already been emphasised in John Murray v. the United Kingdom, 8 February 1996, § 66, Reports of Judgments and Decisions 1996-I; Brusco v. France, no. 1466/07, § 54, 14 October 2010; and Navone and Others, cited above, §§ 73 ‑ 74). Consequently, Article 6 § 3 (c) of the Convention must be interpreted as safeguarding the right of persons charged with an offence to be informed immediately of the content of the right to legal assistance, irrespective of their age or specific situation and regardless of whether they are represented by an officially assigned lawyer or a lawyer of their own choosing (see Simeonovi, cited above, § 119). 130. In the light of the nature of the privilege against self-incrimination and the right to remain silent, the Court considers that in principle there can be no justification for a failure to notify a suspect of these rights. Where a suspect has not, however, been so notified, the Court must examine whether, notwithstanding this failure, the proceedings as a whole were fair. Immediate access to a lawyer able to provide information about procedural rights is likely to prevent unfairness arising from the absence of any official notification of these rights. However, where access to a lawyer is delayed, the need for the investigative authorities to notify the suspect of his right to a lawyer, his right to remain silent and the privilege against self ‑ incrimination takes on particular importance (see Ibrahim and Others, cited above, § 273, and case-law cited therein). (γ) Content of the right of access to a lawyer 131. Article 6 § 3 (c) does not specify the manner of exercising the right of access to a lawyer or its content. While it leaves to the States the choice of the means of ensuring that it is secured in their judicial systems, the scope and content of that right should be determined in line with the aim of the Convention, namely to guarantee rights that are practical and effective (see Öcalan v. Turkey [ GC], no. 46221/99, § 135, ECHR 2005 ‑ IV; Salduz, cited above, § 51; Dvorski, cited above, § 80; and Ibrahim and Others, cited above, § 272). 132. Assigning counsel does not in itself ensure the effectiveness of the assistance he or she may afford an accused (see Öcalan, cited above, § 135; Sakhnovskiy v. Russia [GC], no. 21272/03, § 95, 2 November 2010; and M v. the Netherlands, no. 2156/10, § 82, 25 July 2017 ), and to that end, the following minimum requirements must be met. 133. First, as the Court has already stated above (see paragraph 124), suspects must be able to enter into contact with a lawyer from the time when they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview (see Brusco, cited above, § 54, and A.T. v. Luxembourg, cited above, §§ 86-87), or even where there is no interview (see Simeonovi, cited above, §§ 111 and 121). The lawyer must be able to confer with his or her client in private and receive confidential instructions (see Lanz v. Austria, no. 24430/94, § 50, 31 January 2002; Öcalan, cited above, § 135; Rybacki v. Poland, no. 52479/99, § 56, 13 January 2009; Sakhnovskiy, cited above, § 97; and M v. the Netherlands, cited above, § 85 ). 134. Secondly, the Court has found in a number of cases that suspects have the right for their lawyer to be physically present during their initial police interviews and whenever they are questioned in the subsequent pre ‑ trial proceedings (see Adamkiewicz v. Poland, no. 54729/00, § 87, 2 March 2010; Brusco, cited above, § 54; Mađer v. Croatia, no. 56185/07, §§ 151 and 153, 21 June 2011; Šebalj v. Croatia, no. 4429/09, §§ 256-57, 28 June 2011; and Erkapić v. Croatia, no. 51198/08, § 80, 25 April 2013 ). Such physical presence must enable the lawyer to provide assistance that is effective and practical rather than merely abstract (see A.T. v. Luxembourg, cited above, § 87), and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced (see John Murray, cited above, § 66, and Öcalan, cited above, § 131). 135. The Court has found, for example, that depending on the specific circumstances of each case and the legal system concerned, the following restrictions may undermine the fairness of the proceedings : (a) a refusal or difficulties encountered by a lawyer in seeking access to the criminal case file, at the earliest stages of the criminal proceedings or during the pre-trial investigation (see Moiseyev v. Russia, no. 62936/00, §§ 217-18, 9 October 2008; Sapan v. Turkey, no. 17252/09, § 21, 20 September 2011; and contrast A.T. v. Luxembourg, cited above, §§ 79 ‑ 84); (b) the non-participation of a lawyer in investigative measures such as identity parades (see Laska and Lika v. Albania, nos. 12315/04 and 17605/04, § 67, 20 April 2010) or reconstructions (see Savaş v. Turkey, no. 9762/03, § 67, 8 December 2009; Karadağ v. Turkey, no. 12976/05, § 47, 29 June 2010; and Galip Doğru v. Turkey, no. 36001/06, § 84, 2 8 April 2015 ). 136. In addition to the above-mentioned aspects, which play a crucial role in determining whether access to a lawyer during the pre-trial phase has been practical and effective, the Court has indicated that account must be taken, on a case-by-case basis, in assessing the overall fairness of proceedings, of the whole range of services specifically associated with legal assistance: discussion of the case, organisation of the defence, collection of exculpatory evidence, preparation for questioning, support for an accused in distress, and verification of the conditions of detention (see Hovanesian v. Bulgaria, no. 31814/03, § 34, 21 December 2010; Simons, cited above, § 30; A.T. v. Luxembourg, cited above, § 64; Adamkiewicz, cited above, § 84; and Dvorski, cited above, §§ 78 and 108). (iv) Relationship between the justification for a restriction on the right of access to a lawyer and the overall fairness of the proceedings 137. The principle that, as a rule, any suspect has a right of access to a lawyer from the time of his or her first police interview was set out in the Salduz judgment ( cited above, § 55) as follows: “... 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.” 138. The Salduz judgment also demonstrated that the application on a “systematic basis”, in other words on a statutory basis, of a restriction on the right to be assisted by a lawyer during the pre-trial phase could not constitute a compelling reason ( ibid., § 56). In spite of the lack of compelling reasons in that case, the Court nevertheless analysed the consequences, in terms of overall fairness, of the admission in evidence of statements made by the accused in the absence of a lawyer. It took the view that this defect could not have been cured by the other procedural safeguards provided under domestic law (ibid., §§ 52 and 57-58). 139. The stages of the analysis as set out in the Salduz judgment – first looking at whether or not there were compelling reasons to justify the restriction on the right of access to a lawyer, then examining the overall fairness of the proceedings – have been followed by Chambers of the Court in cases concerning either statutory restrictions of a general and mandatory nature, or restrictions stemming from case-specific decisions taken by the competent authorities. 140. In a number of cases, which all concerned Turkey, the Court did not, however, address the question of compelling reasons, and neither did it examine the fairness of the proceedings, but found that systematic restrictions on the right of access to a lawyer had led, ab initio, to a violation of the Convention (see, in particular, Dayanan, cited above, § 33, and Boz v. Turkey, no. 2039/04, § 35, 9 February 2010). Nevertheless, in the majority of cases, the Court has opted for a less absolute approach and has conducted an examination of the overall fairness of the proceedings, sometimes in summary form (see, among other authorities, Çarkçı v. Turkey (no. 2), no. 28451/08, §§ 43-46, 14 October 2014), and sometimes in greater detail (see, among other authorities, A.T. v. Luxembourg, cited above, §§ 72 ‑ 75 ). 141. Being confronted with a certain divergence in the approach to be followed, in Ibrahim and Others the Court consolidated the principle established by the Salduz judgment, thus confirming that the applicable test consisted of two stages and providing some clarification as to each of those stages and the relationship between them (see Ibrahim and Others, cited above, §§ 257 and 258 ‑ 62). (α) Concept of compelling reasons 142. The criterion of “compelling reasons” is a stringent one: having regard to the fundamental nature and importance of early access to legal advice, in particular at the suspect ’ s first police interview, restrictions on access to a lawyer are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Salduz, cited above, §§ 54 in fine and 55, and Ibrahim and Others, cited above, § 258). A finding of compelling reasons cannot stem from the mere existence of legislation precluding the presence of a lawyer. The fact that there is a general and mandatory restriction on the right of access to a lawyer, having a statutory basis, does not remove the need for the national authorities to ascertain, through an individual and case-specific assessment, whether there are any compelling reasons. 143. The Court has also explained that where a respondent Government have convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for life, liberty or physical integrity in a given case, this can amount to a compelling reason to restrict access to legal advice for the purposes of Article 6 of the Convention (see Ibrahim and Others, cited above, § 259, and Simeonovi, cited above, § 117). (β) The fairness of the proceedings as a whole and the relationship between the two stages of the test 144. In Ibrahim and Others the Court also confirmed that the absence of compelling reasons did not lead in itself to a finding of a violation of Article 6. Whether or not there are compelling reasons, it is necessary in each case to view the proceedings as a whole (see Ibrahim and Others, cited above, § 262). That latter point is of particular importance in the present case, since the applicant relied on a certain interpretation of the Court ’ s case-law on the right of access to a lawyer (see paragraph 97 above) to the effect that the statutory and systematic origin of a restriction on that right sufficed, in the absence of compelling reasons, for the requirements of Article 6 to have been breached. However, as can be seen from the Ibrahim and Others judgment, followed by the Simeonovi judgment, the Court rejected the argument of the applicants in those cases that Salduz had laid down an absolute rule of that nature. The Court has thus departed from the principle that was set out, in particular, in the Dayanan case and other judgments against Turkey (see paragraph 140 above). 145. Where there are no compelling reasons, the Court must apply very strict scrutiny to its fairness assessment. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. The onus will then be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265). 146. The Court further emphasises that where access to a lawyer was delayed, and where the suspect was not notified of the right to legal assistance, the privilege against self-incrimination or the right to remain silent, it will be even more difficult for the Government to show that the proceedings as a whole were fair (ibid., § 273 in fine ). 147. Lastly, it must be pointed out that the principle of placing the overall fairness of the proceedings at the heart of the assessment is not limited to the right of access to a lawyer under Article 6 § 3 (c) but is inherent in the broader case-law on defence rights enshrined in Article 6 § 1 of the Convention (see the case-law on Article 6 § 1 cited in paragraph 120 above). 148. That emphasis, moreover, is consistent with the role of the Court, which is not to adjudicate in the abstract or to harmonise the various legal systems, but to establish safeguards to ensure that the proceedings followed in each case comply with the requirements of a fair trial, having regard to the specific circumstances of each accused. 149. As the Court has already observed, subject to respect for the overall fairness of the proceedings, the conditions for the application of Article 6 §§ 1 and 3 (c) during police custody and the pre-trial proceedings will depend on the specific nature of those two phases and on the circumstances of the case. (γ) Relevant factors for the overall fairness assessment 150. When examining the proceedings as a whole in order to assess the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings, the following non-exhaustive list of factors, drawn from the Court ’ s case-law, should, where appropriate, be taken into account (see Ibrahim and Others, cited above, § 274, and Simeonovi, cited above, § 120): (a) whether the applicant was particularly vulnerable, for example by reason of age or mental capacity; (b) the legal framework governing the pre-trial proceedings and the admissibility of evidence at trial, and whether it was complied with – where an exclusionary rule applied, it is particularly unlikely that the proceedings as a whole would be considered unfair; (c) whether the applicant had the opportunity to challenge the authenticity of the evidence and oppose its use; (d) the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion; (e) where evidence was obtained unlawfully, the unlawfulness in question and, where it stems from a violation of another Convention Article, the nature of the violation found; (f) in the case of a statement, the nature of the statement and whether it was promptly retracted or modified; (g) the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case; (h) whether the assessment of guilt was performed by professional judges or lay magistrates, or by lay jurors, and the content of any directions or guidance given to the latter; (i) the weight of the public interest in the investigation and punishment of the particular offence in issue; and (j) other relevant procedural safeguards afforded by domestic law and practice. (c) Application of the general principles to the facts of the case 151. By way of introduction, the Court points out that the police interviews, examinations by an investigating judge and other investigative acts conducted without the applicant having had any prior access to a lawyer, and without his lawyer being physically present, took place before the delivery of the Court ’ s judgment in Salduz. That being said, it notes that, at his trial before the Assize Court, the applicant referred to that judgment in seeking the exclusion of the statements he had made when questioned without legal assistance. Moreover, the Assize Court, in its interlocutory judgment of 1 February 2010, took account of the Salduz judgment in assessing the situation in the present case, and the Court of Cassation also sought to respond to the ground of appeal based on that case-law (see paragraphs 37-39 and 48 above). 152. In addition, the applicant ’ s trial took place a long time before the Grand Chamber judgment in Ibrahim and Others. While that judgment should be taken into account in so far as it confirms and consolidates the Salduz case-law, the Court is nevertheless aware of the difficulties that the passage of time and the development of its case-law may entail for national courts, even though, as regards Article 6 §§ 1 and 3 (c), such development has been linear since the Salduz judgment. 153. The Court also acknowledges the efforts of the Belgian Court of Cassation to take account of the development of its case-law in spite of the restrictions on the right of access to a lawyer which were imposed at the time under Belgian law. As can be seen from an examination of the relevant judgments delivered between 2010 and 2011 (see paragraphs 66 ‑ 70 above), the Court of Cassation endeavoured to interpret domestic law in such a way as to ensure that it was compliant, to the extent possible, with the principle laid down in the Salduz judgment and applied subsequently by the Court. To that end, it sought essentially to assess the effects of the restriction on the right of access to a lawyer in the context of its assessment of the overall fairness of the proceedings in the case concerned. (i) Existence and extent of the restrictions 154. The Court observes that the impugned restrictions on the right of access to a lawyer in the present case were particularly extensive. 155. The applicant was unable to communicate with a lawyer between the time of his surrender to the Belgian authorities at 10.40 a.m. on 31 December 2007 and his police interview at 11.50 a.m., or between that interview and the examination by the investigating judge at 4.45 p.m. on the same day. He was only granted the right to consult with a lawyer, in accordance with section 20 of the Law on Pre-Trial Detention, once the investigating judge had remanded him in custody, at the end of the examination at 5.42 p.m., and had notified the Bar to arrange for defence counsel to be assigned (see paragraphs 13 and 54 above). 156. Even though he was subsequently able to communicate freely with his assigned lawyer, the applicant continued to be deprived of the lawyer ’ s presence during the subsequent interviews, examinations and other investigative acts conducted in the course of the judicial pre-trial investigation. In addition to the fact that this restriction derived from a lack of provision in the law and from the secrecy of that investigation, as imposed by the Code of Criminal Procedure, and therefore from the interpretation of the legislation in force at the material time (see paragraphs 54 and 59 above), the restriction was applied throughout the pre ‑ trial phase. In total, between his surrender to the Belgian authorities on 31 December 2007 and the judgment of the Indictment Division of the Mons Court of Appeal of 31 August 2009, committing him to stand trial, the applicant was questioned on the charges without a lawyer five times by the criminal investigation police (not including the interviews of 6 and 7 March 2008 about car thefts), three times by the investigating judge and twice by the Crown Prosecutor. Nor did the applicant ’ s lawyer participate in the reconstruction of the crime scene held on 6 June 2008. 157. The Court further finds that uncertainty remains as to the point from which the applicant was actually in contact with a lawyer for the preparation of his defence, after the investigating judge had, at the end of the police custody period on 31 December 2007, taken the necessary steps to have a lawyer assigned (see paragraph 21 above). There is no reference to this matter in the record of the first subsequent interview on 11 January 2008 or elsewhere in the file (see paragraph 25 above). The only certain information available to the Court, on the basis of the record of the investigating judge ’ s examination on 17 March 2008, is that the applicant had, by that point, chosen a lawyer and met him (see paragraph 27 above). In response to the questions put to them at the hearing, the Government were not able to provide any more precise information in this connection. 158. Having regard to the foregoing and to the general principles set out above (see paragraphs 119, 125-30 and 131-36), the Court finds that the applicant, who was entitled to the protection of Article 6 of the Convention from the time of his surrender to the Belgian authorities, did not enjoy the right of access to a lawyer under that provision while in police custody and that this right was subsequently restricted throughout the judicial pre-trial investigation. 159. In the Court ’ s view, the Government ’ s observation that the applicant had been assisted by a lawyer in the course of the proceedings in France is of no consequence in this connection. Those proceedings and the legal assistance provided in France concerned only the execution of the European arrest warrant by the French authorities. (ii) Whether there were compelling reasons 160. It is not in dispute that, at the relevant time, the impugned restrictions stemmed from the lack of provision in the Belgian legislation and the interpretation of the law by the domestic courts (see paragraphs 49 ‑ 60 above). 161. The Court reiterates that restrictions on access to a lawyer for compelling reasons, at the pre-trial stage, are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see paragraph 142 above). There was clearly no such individual assessment in the present case, as the restriction was one of a general and mandatory nature. 162. The Belgian legislation has admittedly been amended by the “Salduz Act”, which entered into force on 1 January 2012, and further by the “Salduz bis Act”, which entered into force on 27 November 2016. The amended legislation confers rights, under certain conditions, to suspects who are questioned or are in custody, such as the right to consult with a lawyer before the police interview and the right to be assisted by the lawyer during any subsequent questioning (see paragraphs 72 ‑ 77 above). It must be observed, however, that the applicant was unable to benefit from those provisions at the time of the pre-trial proceedings against him. 163. Furthermore, the Government have failed to demonstrate the existence of any exceptional circumstances which could have justified the restrictions on the applicant ’ s right, and it is not for the Court to ascertain such circumstances of its own motion (see Simeonovi, cited above, § 130). 164. The restrictions in question were not justified by any compelling reason. (iii) The fairness of the proceedings as a whole 165. In such circumstances, the Court must apply very strict scrutiny to its fairness assessment, especially where there are statutory restrictions of a general and mandatory nature. The burden of proof thus falls on the Government, which, as they have accepted, must demonstrate convincingly that the applicant nevertheless had a fair trial as a whole. As indicated above (see paragraph 145 above and the case-law cited), the Government ’ s inability to establish compelling reasons weighs heavily in the balance, and the balance may thus be tipped towards finding a violation of Article 6 §§ 1 and 3 (c). 166. In this exercise, the Court will examine, to the extent that they are relevant in the present case, the various factors deriving from its case-law as set out in the Ibrahim and Others and Simeonovi judgments and reiterated in paragraph 150 above. (α) Whether the applicant was vulnerable 167. The Government argued that the applicant had not been particularly vulnerable. The applicant, however, contended that he had been in a vulnerable state on account of his detention and that this vulnerability had been exacerbated by his low IQ and extremely poor verbal skills, as shown by a neuropsychological assessment carried out in April 2008 (see paragraph 29 above). 168. The Court notes that the above-mentioned assessment concluded that while the applicant had limited intellectual capacities, his reasoning was nevertheless within the norm. Moreover, the applicant has not pointed to any indication in the records of his interviews and examinations that he had difficulty expressing himself. In addition, no other particular circumstance can be noted which would indicate that the applicant was in a greater state of vulnerability than that in which persons interviewed by investigators would generally find themselves. The interviews conducted while he was in police custody and during the judicial pre-trial investigation were not unusual or excessively long. (β) The circumstances in which the evidence was obtained 169. The Court observes that the applicant did not allege, either before the domestic courts or before it, that the Belgian police had exerted any pressure on him. As to the allegation that he had been pressurised by the French gendarmes into subsequently accusing a minor at his first police interview in Belgium, this was dismissed by the Assize Court. That allegation was also contradicted by the applicant himself, as in a subsequent version of the events he gave a different explanation as to why he had made a false accusation (see paragraphs 30 and 40 above). (γ) The legal framework governing pre-trial proceedings and the admissibility of evidence at trial, and whether the applicant was able to challenge the evidence and oppose its use 170. The Government relied on the general safeguards that, in their view, the applicant had enjoyed as a result of the legal framework governing pre-trial proceedings at the material time, and in particular on the fact that, except during questioning, the applicant had been entitled to communicate freely and in an unlimited manner with his lawyer from the end of the police custody period. Subsequently, except for the record of the police interview of 31 December 2007 – of which a copy was given to him at the end of his first appearance before the investigating judge – he systematically received a copy of all the interview and examination records, thus enabling him to discuss them with his lawyer and to mount his defence. 171. It is true that these safeguards enabled the applicant to benefit, during the judicial investigation phase, from the services of defence counsel and to prepare his defence strategy. In view of the fact, however, that Belgian law as applied in the proceedings against the applicant was not in conformity with the requirements of Article 6 § 3 (see, in particular, paragraphs 160 and 161 above), the overall fairness of the proceedings could not have been guaranteed merely by legislation providing for certain safeguards in the abstract. The Court must examine whether the application of these legal provisions in the present case had a compensatory effect in practical terms, rendering the proceedings fair as a whole. In the context of this examination, which lies at the heart of the second stage of the test set out in the Salduz and Ibrahim and Others judgments, the Court finds that the applicant ’ s conduct during the police interviews and examinations by an investigating judge was capable of having such consequences for the prospects of his defence that there was no guarantee that either the assistance provided subsequently by a lawyer or the adversarial nature of the ensuing proceedings could cure the defects which had occurred during the period of police custody (see, mutatis mutandis, Salduz, cited above, § 58). In addition, as mentioned in paragraph 157 above, the date from which the applicant began to receive legal assistance is not to be found in the case file. While it is clear that the applicant ’ s defence counsel changed several times, it is not clear from the case file how frequent the consultations were, or whether the lawyer had been notified of the dates of the interviews and examinations. The applicant could not therefore prepare for his questioning beforehand with his lawyer, and he could only tell his lawyer later on how the interview or examination had gone, if need be with the help of the official record, and then draw the appropriate conclusions for the future. 172. The Government further pointed out that the judicial investigation had been conducted under the supervision of the Indictment Division, before which the applicant could have challenged its lawfulness or complained of procedural irregularities, with his lawyer ’ s assistance, at any time (see paragraph 107 above). However, that safeguard did not play a major role in the present case. First, the applicant never raised, at that stage, the complaints that he later submitted to the Assize Court, the Court of Cassation and this Court, and secondly, the pre-trial courts did not address, as they could have done of their own motion, the procedural defects at issue in the present case. 173. As pointed out in the Ibrahim and Others judgment ( cited above, § 254), complaints under Article 6 about the investigation stage tend to crystallise at the trial itself when the prosecution seeks to rely on evidence obtained during the pre-trial proceedings – the phase in which the restrictions on Article 6 rights applied – and the defence seeks its exclusion. In the present case, the question whether the applicant ’ s statements should have been admitted in evidence was examined before the Assize Court at the opening of the trial on 1 February 2010. The applicant, assisted by his lawyer, filed pleadings seeking the nullity of the statements he had given when questioned without a lawyer and the dismissal of the prosecution case. Relying on the Salduz judgment, he argued that the systematic deprivation of his right of access to a lawyer from the time of his first police interview sufficed for a violation of Article 6 to be found. In a judgment given on the same day, the Assize Court rejected the applicant ’ s plea and admitted in evidence all the records in question, finding that the applicant could still have a fair trial even though he had not been assisted by a lawyer during the police interviews and examinations by an investigating judge (see paragraph 41 above). 174. It should, however, be observed that the Assize Court did not carry out a more precise examination of either the official records or the circumstances in which the applicant had been questioned by – and had given statements to – the police and the investigating judge (contrast Ibrahim and Others, cited above, §§ 69-84 and 282). Thus there is no indication that the court engaged in the requisite analysis of the consequences of the lawyer ’ s absence at crucial points in the proceedings. Such an omission is all the more significant as, on account of the oral nature of proceedings in the Assize Court and the fact that no detailed record of the hearing is kept, it is not possible to assess the impact of the oral argument in the presence of the jury. 175. As regards the subsequent assessment by the Court of Cassation, the Government explained that the settled case-law at the time, which consisted in the systematic quashing of convictions based on self ‑ incriminating statements given in the absence of a lawyer, was tantamount to an exclusionary rule. Where interviews or examinations had been conducted without a lawyer, the Court of Cassation examined whether they had had an effect on the fairness of the trial and it had thus struck down judgments of trial courts which had taken account of self ‑ incriminating statements given without legal assistance (see paragraphs 66-70 above). 176. The Court observes that the Court of Cassation quashed a judgment on those grounds for the first time on 15 December 2010, and therefore after the trial court judgment in the present case. In that judgment the Court of Cassation pointed out, for example, that it was necessary to assess the influence of improperly obtained evidence on the outcome of the prosecution. In the present case, it does not appear from the Court of Cassation ’ s judgment that it carried out its assessment of the overall fairness of the proceedings from that perspective. Rather, in its examination of the proceedings, the Court of Cassation focused on a lack of self-incriminating statements during the interviews in police custody and, as regards the rest of the pre-trial investigation in which the applicant ’ s right was also restricted, it merely stated that he had never been compelled to incriminate himself and that he had always expressed himself freely (see paragraph 48 above). (δ) The nature of the statements 177. According to the Assize Court and the Court of Cassation, the statements given by the applicant during the interviews and examinations at issue were not self-incriminating and did not contain any confessions. The Government also relied on that position. 178. The Court reiterates, however, that the privilege against self ‑ incrimination is not confined to actual confessions or to remarks which are directly incriminating; for statements to be regarded as self ‑ incriminating it is sufficient for them to have substantially affected the accused ’ s position (see Schmid-Laffer v. Switzerland, no. 41269/08, § 37, 16 June 2015; see also A.T. v. Luxembourg, cited above, § 72). 179. In the present case, while it is true that the applicant never confessed to the charges and therefore did not incriminate himself stricto sensu, he nevertheless gave detailed statements to the investigators which influenced the line of questioning. He thus admitted on 31 December 2007, while in police custody, that he had been present at the scene of the crime when M.B. was murdered and that he had threatened a witness, as confirmed by eyewitnesses (see paragraph 24 above). When he was interviewed on 25 March 2008 he further stated that C.L. had been pregnant, that he had been alone with her on 17 September 2007 and that he had struck her. Those particulars regarding C.L., which were not corroborated by any testimony other than that of the victim (see paragraph 28 above), must have affected the applicant ’ s position. From that point onwards, the investigators ’ suspicions about the assault on C.L. could only be regarded, in their view, as well-founded. In addition, as the applicant changed his version of the facts several times in the course of the judicial investigation, thus undermining his general credibility, his first examination by the investigating judge was of crucial importance. Reiterating that very strict scrutiny is called for where there are no compelling reasons to justify the restrictions at issue, the Court finds that significant weight must be attached to the above factors in its assessment of the overall fairness of the proceedings. 180. The applicant complained that the investigators had obtained information from him on 31 December 2007 while he was in police custody, even though he had not consulted with a lawyer beforehand and had not been notified in a sufficiently explicit manner of his right to remain silent and the privilege against self-incrimination. The Court observes in that connection that at the start of his first police interview the applicant received express information that his statements could be used in evidence (see paragraph 14 above). That information, which he also received at the beginning of each of his subsequent interviews and examinations, was regarded as indirectly enshrining the right to remain silent in Belgian law, whereas the legislation at the time did not expressly provide for that right (see paragraph 54 above). 181. Having regard to the case-law set out above (see paragraphs 129 ‑ 30), and since the applicant was not able to consult with a lawyer prior to questioning or to secure the presence of one while he was in police custody, the Court is not persuaded, in the circumstances of the present case, that the information thus given by the investigators was sufficiently clear to guarantee the effective exercise by the applicant of his right to remain silent and not to incriminate himself. In that connection, it cannot but note that the applicant made significant statements and fully availed himself of his freedom to select or conceal facts. (ε) The use of evidence and, in a case where guilt is assessed by lay jurors, the content of any jury directions or guidance 182. The trial took place in the Assize Court, a non-permanent court made up of professional judges assisted by a jury (see Taxquet v. Belgium, no. 926/05, §§ 18-21, 13 January 2009, and Castellino v. Belgium, no. 504/08, §§ 45-47, 25 July 2013, for the composition of the Assize Court and rules governing the selecting of the jury; see Taxquet, Chamber judgment cited above, §§ 25-31, and Lhermitte, cited above, §§ 40-44, for rules governing the trial itself). 183. The indictment was read out at the start of the trial, before the oral argument. It set out, in twenty-one pages, the applicant ’ s family life and background, the facts and how they had occurred, the investigative acts and their results, and the content of the medical assessments. It mentioned the elements that the applicant had acknowledged and his different versions of the facts. 184. The Government challenged the applicant ’ s argument that the indictment was largely based on his statements. The Court observes that the prosecution also relied on various material that was unrelated to and independent of his statements, namely witness statements, the investigators ’ findings, the real evidence collected before his arrest and the results of the medical and psychiatric assessments (see paragraph 43 above). Nevertheless, as noted above (paragraph 178), the statements given by the applicant from the time of his questioning in police custody contained a detailed account of the events which had occurred on the day of the murder, and were complemented or contradicted by equally detailed subsequent statements, and he never denied being present at the scene of the crime or threatening a witness. He also spontaneously gave information about C.L. which tended to incriminate him. Those statements provided the investigators with a framework which must have influenced the indictment, even though they had already obtained certain evidence prior to the applicant ’ s first interview. 185. As to whether those elements influenced the deliberation and the decision ultimately reached by the jury, the Court takes account of the fact that the indictment is of limited value for an understanding of the jury ’ s verdict, because it is read out before the oral argument, which will necessarily serve as the basis for the jurors ’ personal conviction (see Taxquet [GC], cited above, § 95, and Lhermitte, cited above, § 77). 186. That being said, in the present case the jury concluded that the attempted murder of C.L. had been premeditated, as could be established in particular from the applicant ’ s statements (see paragraphs 45 and 179 above). The Court attaches considerable weight to this point, as it demonstrates that the statements given by the applicant without a lawyer being present were an integral part of the evidence upon which the verdict on this count was reached. 187. As to the other counts of the indictment, and in particular the principal one concerning the murder of M.B., the Court agrees with the Government that the jury relied on evidence other than the applicant ’ s statements, namely the consistent and mutually corroborative witness statements of youngsters who had seen only the accused and his victim at the scene, without anyone else being present, the threats that the accused had previously made against his victim and the various steps he had taken in preparing to commit the crime (see paragraph 45 above). 188. Nevertheless, the Court notes from an examination of the record of the 1 February 2010 hearing that the President of the Assize Court did not give any warning to the jury as to the weight to be attached in their deliberations to the applicant ’ s numerous statements. While it is necessary to take account of the special procedural features of trials in assize courts sitting with a lay jury, which decides independently whether or not the defendant is guilty, the Court would point out that, in the context of cases concerning the accused ’ s comprehension of the reasoning behind the verdict, it has emphasised the importance of any directions or guidance given by the president to the jurors as to the legal issues arising or the evidence given (see Taxquet [GC], cited above, § 92, and Lhermitte, cited above, § 68). Such directions or guidance may be of particular importance in order to enable the jurors to assess the consequences, for the fairness of the trial, of any procedural defects that may have arisen at the investigation stage (see Ibrahim and Others, cited above, §§ 274, 292 and 310). In spite of its efforts to assess the overall fairness of the proceedings having regard to the Court ’ s recent case-law (see paragraph 48 above), the Court of Cassation does not seem to have taken into account, in its review, the impact on the jury ’ s decision of the fact that the jurors had not been informed of particulars which could have guided them in assessing the significance of the statements that had been given by the applicant without legal assistance. 189. The Court therefore takes the view that the total absence, in the present case, of any directions or guidance as to how the jury should assess the applicant ’ s statements in relation to the other evidence in the file and their evidential value, even though they had been taken without a lawyer being present, and, for those given in police custody, without the applicant having received sufficiently clear information on his right to remain silent, is a major defect. (ζ) Weight of the public interest 190. There is no doubt that sound public-interest considerations justified prosecuting the applicant, as he was indicted in particular on one count of murder and two counts of attempted murder. (η) Whether other procedural safeguards were afforded by domestic law and practice 191. The Court observes that the Belgian Court of Cassation, at the relevant time, took account of a series of procedural safeguards under Belgian law in order to assess the conformity with the Convention of the statutory restrictions on access to a lawyer in police custody (see paragraphs 48 and 67). 192. As the Court has emphasised in paragraph 171 above, the overall fairness of the proceedings is not guaranteed merely by legislation providing for certain safeguards in the abstract. Only through an examination of their application to the case at hand can it be determined whether the proceedings were fair as a whole. In any event, all the safeguards referred to by the Court of Cassation have been taken into account by the Court in its examination of the present case (see paragraphs 165-90 above). (θ) Conclusion as to the overall fairness of the proceedings 193. In conclusion, re-emphasising the very strict scrutiny that must be applied where there are no compelling reasons to justify the restriction on the right of access to a lawyer, the Court finds that the criminal proceedings brought against the applicant, when considered as a whole, did not cure the procedural defects occurring at the pre-trial stage, among which the following can be regarded as particularly significant: (a) The restrictions on the applicant ’ s right of access to a lawyer were particularly extensive. He was questioned while in police custody without having been able to consult with a lawyer beforehand or to secure the presence of a lawyer, and in the course of the subsequent judicial investigation no lawyer attended his interviews or other investigative acts. (b) In those circumstances, and without having received sufficiently clear prior information as to his right to remain silent, the applicant gave detailed statements while in police custody. He subsequently presented different versions of the facts and made statements which, even though they were not self-incriminating stricto sensu, substantially affected his position as regards, in particular, the charge of the attempted murder of C.L. (c) All of the statements in question were admitted in evidence by the Assize Court without conducting an appropriate examination of the circumstances in which the statements had been given, or of the impact of the absence of a lawyer. (d) While the Court of Cassation examined the admissibility of the prosecution case, also seeking to ascertain whether the right to a fair trial had been respected, it focused on the absence of a lawyer during the period in police custody without assessing the consequences for the applicant ’ s defence rights of the lawyer ’ s absence during his police interviews, examinations by the investigating judge and other acts performed in the course of the subsequent judicial investigation. (e) The statements given by the applicant played an important role in the indictment and, as regards the count of the attempted murder of C.L., constituted an integral part of the evidence on which the applicant ’ s conviction was based. (f) In the trial before the Assize Court, the jurors did not receive any directions or guidance as to how the applicant ’ s statements and their evidential value should be assessed. 194. The Court finds it important to emphasise, as it has done in other cases under Article 6 § 1 of the Convention in which an assessment of the overall fairness of the proceedings was at issue, that it is not for the Court to act as a court of fourth instance (see Schatschaschwili, cited above, § 124). In carrying out such an assessment, as required by Article 6 § 1, it must nevertheless carefully look at how the domestic proceedings were conducted, and very strict scrutiny is called for where the restriction on the right of access to a lawyer is not based on any compelling reasons. In the present case, it is the combination of the various above-mentioned factors, and not each one taken separately, which rendered the proceedings unfair as a whole. (iv) General conclusion 195. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 196. 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.” 197. The applicant alleged that he had sustained non-pecuniary damage on account of the lack of legal assistance during the pre-trial phase (police custody and judicial investigation) and he estimated this damage at 5,000 euros (EUR). 198. The Government argued that if the Court were to award any sum by way of just satisfaction, it would be reasonable to limit it to EUR 3,000. 199. As the Court has found on many occasions, it does not follow from the Court ’ s finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the applicant ’ s case that he was wrongly convicted and it is impossible to speculate as to what might have occurred had there been no breach of the Convention (see Dvorski, cited above, § 117, and Ibrahim and Others, cited above, § 315). In the circumstances of the present case, the Court takes the view that a finding of a violation constitutes in itself sufficient just satisfaction and it thus rejects the applicant ’ s claim. 200. The Court notes that Article 442 bis of the Code of Criminal Procedure provides for the possibility of reopening the proceedings against a convicted person (see paragraph 78 above). It reiterates in this connection that while this may be regarded as an important aspect of the execution of its judgments, the reopening of proceedings is not the only way to execute a judgment of the Court. The use of this possibility in the present case will be a matter for assessment, if appropriate, by the Court of Cassation, having regard to domestic law and to the particular circumstances of the case (see, mutatis mutandis, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 94 and 99, 11 July 2017). It is for the national authorities and not the Court to settle this question. | The Grand Chamber held that there had been a violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention. It found in particular that the criminal proceedings, when considered as a whole, had not remedied the procedural defects occurring at the pre-trial stage. The restrictions on the right of access to a lawyer had been particularly extensive and in those circumstances, without being sufficiently informed of his right to remain silent, the applicant had made detailed statements while in police custody. His statements had subsequently been included in the evidence before the Assize Court, which had failed to conduct an appropriate examination of how they had been obtained or to consider the impact of the lawyer’s absence. The Court of Cassation had focused on the lack of legal assistance in police custody but had not assessed the consequences for the applicant’s defence rights of the lawyer’s absence during his subsequent police interviews, examinations by the investigating judge and other acts during the judicial investigation. In the Grand Chamber’s view, the combination of these various factors had rendered the proceedings unfair as a whole. |
847 | null | RELEVANT BULGARIAN LAW AND PRACTICE SPECIAL MEANS OF SURVEILLANCEMeaning of the term “special means of surveillance” and most common types of surveillance techniques Meaning of the term “special means of surveillance” and most common types of surveillance techniques Meaning of the term “special means of surveillance” and most common types of surveillance techniques 11. In Bulgaria, the umbrella term “special means of surveillance” comprises electronic or mechanical devices enabling the preparation of evidential materials (video and audio recordings, photographs and marked objects) and the covert techniques for using those devices (section 2(1) and (2) of the Special Surveillance Means Act 1997 and Article 172 § 1 of the Code of Criminal Procedure). Those techniques are (a) visual surveillance, (b) eavesdropping and tapping, (c) tracking, (d) covertly intruding (into vehicles or premises), (e) marking and checking correspondence or computerised information, (f) controlled delivery, (g) pseudo-transactions, and (h) the use of undercover agents (section 2(3) of the 1997 Act and Article 172 § 1 of the Code). Sections 5 to 10c define each of those techniques. Section 6 in particular clarifies that tapping and eavesdropping include the interception of both telephone and electronic communications. 12. According to the annual reports published by the National Bureau for Control of Special Means of Surveillance (see paragraphs 14, 16 and 108 below) since 2014, the techniques which are used most often are (a) visual surveillance and (b) tapping and eavesdropping: Year Visual surveillance Tapping or eavesdropping 2014 2,773 (24.94%) 4,927 (44.33%) 2015 1,417 (20.25%) 3,848 (54.97%) 2016 1,865 (21.56%) 4,717 (54.80%) 2017 1,699 (21.23%) 4,470 (55.86%) 2018 1,669 (19.39%) 5,124 (59.53%) 2019 1,628 (19.22%) 5,076 (59.92%) 2020 1,372 (18.27%) 4,594 (61.19%) General outline and evolution of the relevant legislation 13. Special means of surveillance were first regulated in Bulgaria with the Special Means of Surveillance Act 1994, in force until 1997. Currently, the law governing special means of surveillance is chiefly set out in the Special Means of Surveillance Act 1997, as amended, Articles 172-177 of the Code of Criminal Procedure, as amended, sections 304-310 of the Electronic Communications Act 2007, as amended, and the internal rules of the National Bureau for Control of Special Means of Surveillance, whose most recent version was adopted in October 2016. 14. In December 2008, following the Court’s judgment in Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007), in which the Court found breaches of Article 8 and 13 of the Convention, the 1997 Act was extensively amended. The explanatory notes to the amendment bill referred to that judgment and the need to bring the Act into line with the requirements of the Convention. Along with a host of other changes, the amendment created a National Bureau for Control of Special Means of Surveillance (“the National Bureau”), an independent authority whose five members were to be elected by Parliament and whose task was to oversee the use of special means of surveillance and the storing and destruction of material obtained through such means, and to protect individuals against the unlawful use of such means. 15. In October 2009, however, before the National Bureau could start operating, Parliament enacted further amendments to the 1997 Act, abolishing the Bureau and replacing it with a special parliamentary subcommittee. The amendments came into effect in November 2009. For further details on these amendments and the committee’s work in 2011, see Hadzhiev v. Bulgaria (no. 22373/04, §§ 26-28, 23 October 2012), and Lenev v. Bulgaria (no. 41452/07, §§ 81-83, 4 December 2012). 16. A further amendment to the 1997 Act which came into effect in August 2013 re-established the National Bureau as an “independent State authority” (see paragraphs 108 to 123 below). Its five members were elected by Parliament in December 2013, and it began its work in the beginning of 2014. The special parliamentary subcommittee became a full committee and continued to exist alongside the Bureau (see paragraph 125 below). 17. The relevant provisions of all enactments cited in paragraph 13 above, and of all other relevant provisions mentioned in the text, are set out below as they stood on 7 December 2021. Situations which may trigger the use of special means of surveillance 18. Special means of surveillance may be used if that is necessary to prevent or detect one or more of the “serious intentional offences” (Article 93 § 7 of the Criminal Code defines a “serious” offence as one punishable by more than five years’ imprisonment) listed in an exhaustive manner in section 3(1) of the 1997 Act and Article 172 § 2 of the Code of Criminal Procedure, which refer either to the chapters in the Criminal Code in which the provisions defining those offences are contained or to the provisions themselves. [1] Those include various offences against the Republic (such as attempted coup d’état, treason, espionage and sabotage); terrorist offences, including preparatory ones; murder; causing grievous bodily harm; abduction; rape and some other sexual offences; human trafficking; vote buying and some other electoral offences; theft; robbery; embezzlement; fraud; blackmail; dealing in stolen goods; money laundering; various economic, credit and customs offences; aggravated forgery; aggravated misuse of public office; perverting the course of justice; bribery; being the leader or member of a criminal gang; some aggravated computer offences; arson; some transport offences; some ecological offences; various narcotic drugs offences; disclosing official secrets; desertion in wartime and various military offences; unlawfully dealing in nuclear materials; and various offences against peace and humanity. 19. According to the National Bureau’s annual reports, the two offences which have given rise to the highest number of instances of surveillance since 2014 were those under Article 321 of the Criminal Code (being the leader or a member of a criminal gang, which, regardless of its place of commission within Bulgaria, has been within the jurisdiction of the Specialised Criminal Court since that court’s creation in 2011-12 – see paragraph 46 below) and under Article 354a of the Code (dealing in narcotic drugs, which, if committed by criminal gangs, has likewise been within the jurisdiction of the Specialised Criminal Court since its creation in 2011-12): Year Criminal gangs Narcotic drugs 2014 20.90% 29.30% 2015 34.15% 19.00% 2016 42.05% 14.00% 2017 43.52% 14.63% 2018 53.17% 14.28% 2019 48.78% 14.91% 2020 51.11% 13.86% 20. The additional condition is that special means of surveillance may be used to prevent or detect one or more of those offences only if the requisite intelligence cannot be obtained by other means, or if doing so would entail exceptional difficulties (section 3(1) in fine of the 1997 Act). 21. When deployed to prevent or detect such offences, special means of surveillance are to be used to obtain evidence about them (section 3(2)). 22. Special means of surveillance may also be used for activities relating to national security (section 4 of the 1997 Act). [2] The Government submitted that in practice national security was never cited as a standalone ground for surveillance, and that surveillance applications were always also based on the need to prevent or detect an offence. They cited two statements drawn up by the National Bureau and the State Agency for National Security for the purposes of the present proceedings. In its statement, the Bureau said that in its inspections it had found that authorities seeking the use of special means of surveillance always referred to a relevant offence. In its statement, the State Agency for National Security said that owing to the manner in which section 14(1) and (3) of the 1997 Act (see paragraphs 39 and 41 below) was to be construed, surveillance applications always had to refer to a relevant offence. Persons who or objects which can be subjected to secret surveillanceGeneral rules General rules General rules 23. By section 12(1) to (3) of the 1997 Act, special means of surveillance may be used with respect to (a) persons suspected of, or unwittingly used for, the preparation or commission of one or more of the above-mentioned “serious intentional offences”; (b) persons or objects related to national security; (c) objects necessary to identify such persons; (d) persons who have agreed to being placed under surveillance to protect their life or property; or (e) a witness in criminal proceedings who has agreed to being placed under surveillance in order to expose the commission of one of the offences listed in section 12(3) by another (those include terrorist offences, hostage holding, human trafficking, taking and giving a bribe, and being the leader or member of a criminal gang). 24. According to the National Bureau’s annual reports, the number of persons placed under surveillance each year since 2011 were as follows: Year Persons placed under surveillance Of those, of their own volition 2011 8,184 not specified 2012 5,902 not specified 2013 4,452 not specified 2014 4,202 162 2015 2,638 79 2016 2,749 73 2017 2,748 55 2018 3,046 62 2019 3,310 not specified 2020 3,042 not specified 25. According to the National Bureau’s annual reports, the number of cases in which the authorities had placed under surveillance objects with a view to identifying persons (see paragraph 23 (c) above) were as follows: Year Number of cases in which objects were placedunder surveillance for identification purposes 2014 645 2015 299 2016 340 2017 261 2018 279 2019 259 2020 172 Rules relating to lawyer-client communications 26. By section 33(1) of the Bar Act 2004, lawyers’ papers, files, electronic documents, computer equipment and other data carriers are “inviolable” and are not subject to inspection, copying, checks or seizure. By section 33(2), correspondence between lawyers and clients, regardless of the means of communication, electronic or otherwise, is not subject to inspection, copying, checks or seizure either. By section 33(3), conversations between a lawyer and a client cannot be intercepted and recorded, and any possible recordings of such conversations cannot be used as evidence and are subject to immediate destruction. By Article 136 § 2 of the Code of Criminal Procedure, the use of special means of surveillance with respect to lawyers is subject to the requirements of the 2004 Act. The Supreme Court of Cassation has held that in spite of the literal terms of section 33(3) of the 2004 Act, the prohibition which it lays down is not necessarily absolute in all cases, in view of, among other things, the public interest in detecting offences committed by lawyers (see реш. № 211 от 08.04.2019 г. по н. д. № 1009/2018 г., ВКС, III н. о.). The 1997 Act does not contain any provisions specifically dealing with the surveillance of lawyers or the interception of their communications as a result of the surveillance of their clients. 27. The issue appears to have been touched upon solely in an instruction issued by the Chief Prosecutor on 11 April 2011 in the exercise of his power under section 138(4) (since August 2016, section 138(6)) of the Judiciary Act 2007 to make instructions governing the work of the prosecuting authorities. The instruction’s preamble said that its issuing was necessary to halt inconsistent practices and avert breaches of section 33 of the 2004 Act (see paragraph 26 above). 28. Point 12 of the instruction says that special means of surveillance can be used with respect to lawyers only if there is information which can provide grounds for a reasonable suspicion that they have, alone or with others, committed an offence. The surveillance request must expressly mention that the surveillance will be directed against a lawyer. 29. Point 13 of the instruction says that if in the course of a surveillance operation the authorities record the conversation of a lawyer with a client or with another lawyer, and that conversation touches upon a client’s defence, they must not prepare evidentiary material on its basis, unless the surveillance reveals that the lawyer has him- or herself engaged in criminal activity. 30. It does not seem that the instruction has been published by the Prosecutor’s Office. On 13 April 2011 the Chief Prosecutor did, however, send a copy of it to the Supreme Bar Council, and in June 2011 the Supreme Bar Council published it in issue 5-6/2011 of its journal, “Lawyers’ Review” ( Адвокатски преглед ) ( link ). Authorisation proceduresAuthorities entitled to request secret surveillance Authorities entitled to request secret surveillance Authorities entitled to request secret surveillance 31. Only a limited number of authorities may seek the use of special means of surveillance and draw on the intelligence obtained thereby, within the spheres of their respective competencies. 32. Outside the framework of already pending criminal proceedings, the use of such means may only be sought by: (a) various directorates of the Ministry of Internal Affairs (national police, fight against organised crime, border police, internal affairs, regional directorates and various specialised directorates); (b) the territorial directorates and units of the State Agency for National Security; (c) the military-intelligence and military-police services attached to the Minister of Defence; (d) the Intelligence Agency; (e) regional prosecutor’s offices (only in relation to serious electoral offences); and (f) the specialised anti-corruption directorate [3] (section 13(1) of the 1997 Act). 33. In the course of criminal proceedings, that may be done by the public prosecutor in charge of supervising the pre-trial investigation (section 13(2) of the 1997 Act and Article 173 § 1 of the Code of Criminal Procedure). 34. For the prevention of terrorist offences (including preparatory ones), the request may be made by the Chief Prosecutor, the head of State Agency for National Security, the head of the Intelligence Agency, the head of the military intelligence service (or their duly authorised deputies), or the chief secretary of the Ministry of Internal Affairs (section 13(4) of the 1997 Act). 35. Special rules govern offences alleged to have been committed by court presidents, judges, public prosecutors or investigators (section 13(3) of the 1997 Act and Article 174 § 5 of the Code of Criminal Procedure). 36. No other authorities may seek the use of special means of surveillance (section 13(6) of the 1997 Act). 37. The application must originate from the head of the respective authority; if it is made by a public prosecutor, he or she must notify the head of the respective prosecutor’s office (sections 13(5) and 14(1) of the 1997 Act and Article 173 § 1 in fine of the Code of Criminal Procedure). 38. According to the National Bureau’s annual reports, the respective share of surveillance applications were as follows: Year Ministry of Internal Affairs State Agencyfor National Security Prosecuting authorities Other authorities 2014 43.40% 31.50% 24.90% 0.20% 2015 50.29% 19.16% 30.05% 0.51% 2016 56.22% 10.08% 33.39% 0.32% 2017 56.50% 6.41% 36.94% 0.15% 2018 60.78% 4.82% 34.27% 0.66% 2019 53.73% 5.69% 37.95% 2.63% 2020 51.12% 7.28% 36.98% 3.70% Content of an application for secret surveillance (a) The application itself 39. Surveillance applications made outside the framework of already pending criminal proceedings must be duly reasoned and set out (a) a full account of the circumstances giving cause to suspect that a relevant offence is being prepared or committed or has been committed, including when it comes to national security within the meaning of section 4 of the 1997 Act (see paragraph 22 above); (b) a full account of the steps already taken and the results of any previous preliminary inquiries or investigations; (c) data permitting the identification of the target (person or object); (d) the intended duration of the surveillance and reasons why that duration is necessary; (e) the intended surveillance techniques; (f) reasons why the intelligence cannot be obtained by other means or an account of the exceptional difficulties which that would entail; and (g) the official who will be informed of the results of the surveillance (section 14(1) of the 1997 Act). 40. Surveillance applications made in the course of criminal proceedings must also be duly reasoned and set out (a) information about the offence under investigation; (b) an account of all earlier investigatory steps and their results; (c) data permitting the identification of the target (person or object); (d) the intended surveillance techniques; (e) the intended duration of the surveillance and reasons why it is necessary; and (f) reasons why the intelligence cannot be obtained by other means or an account of the exceptional difficulties which that would entail (Article 173 § 2 of the Code of Criminal Procedure). 41. Surveillance applications relating to terrorist offences (including preparatory ones) must set out (a) the circumstances which give cause to suspect that a relevant offence is being prepared or committed or has been committed; (b) if available, data permitting the identification of the target (person or object); (c) the intended duration of the surveillance; (d) the intended surveillance techniques; and (e) the official who will be informed of the results of the surveillance (section 14(3) of the 1997 Act). 42. Renewal applications must additionally contain a full account of any surveillance results obtained so far (section 21(3) of the 1997 Act and Article 173 § 6 of the Code of Criminal Procedure). 43. Applications concerning the surveillance or people for their own benefit, or of cooperating witnesses (see paragraph 23 (d) and (e) above), must be accompanied by their written consent (section 14(2) of the 1997 Act and Article 175 § 5 of the Code of Criminal Procedure). (b) Materials supporting the application 44. For applications made outside criminal proceedings, the rule is that the requesting authority must enclose all materials on which its application is based (section 15(3) of the 1997 Act). [4] For applications made in the course of criminal proceedings, the rule is that the judge competent to issue the surveillance warrant may request those materials (Article 174 § 4 of the Code of Criminal Procedure). [5] It is unclear whether there is a difference in practice. 45. The National Bureau’s annual report for 2017 – the only one to have touched upon the point – said (at p. 19) that in that year 2% of the applications made by the Ministry of Internal Affairs, 4% of those made by the prosecuting authorities, and 4% of those made by the State Agency for National Security had been refused because they had not presented all materials on which those applications had been based. According to the same report, the percentage of applications refused for that reason during the two preceding years had been 2.5% for the Ministry and 5% for the Agency in 2015, and 6% for the Agency in 2016. Authorities competent to issue secret surveillance warrants 46. As a rule, surveillance warrants may be issued only by the presidents of the Sofia City Court, of the respective regional or military courts, and of the Specialised Criminal Court (which was created in 2011 and started its work in the beginning of 2012), or an expressly authorised deputy (section 15(1) and (2) of the 1997 Act and Article 174 §§ 1-3 of the Code of Criminal Procedure). The word “respective” – specifically added to section 15(1) of the 1997 Act in 2013 to prevent the risk of forum-shopping by the relevant authorities – has been construed by the courts to mean the court which would be competent ratione materiae, personae and loci to try the alleged offence in relation to which surveillance is being sought (see реш. № 262304 от 07.04.2021 г. по гр. д. № 8701/2019 г., СГС, unclear whether final). 47. Special rules govern offences allegedly committed by judges, public prosecutors or investigators: in those cases the warrant may be issued by the presidents of the Sofia Court of Appeal, the Military Court of Appeal or the Specialised Criminal Court of Appeal, or a duly authorised deputy, depending on which court would be competent to try the criminal case (section 15(4)(1) of the 1997 Act and Article 174 § 5 of the Code of Criminal Procedure). If the offence is alleged to have been committed by one of those presidents or deputies, the warrant may be issued by the Vice ‑ President of the Supreme Court of Cassation in charge of its Criminal Division (section 15(4)(2) of the 1997 Act and Article 174 § 6 of the Code of Criminal Procedure). 48. Compliance with those jurisdictional rules has been held to be an essential safeguard against unlawful surveillance (see реш. № 365 от 14.02.2014 г. по в. н. о. х. д. № 653/2013 г., САС, upheld by реш. № 189 от 03.02.2015 г. по н. д. № 515/2014 г., ВКС, II н. о.). 49. According to the National Bureau’s annual reports (and, for the period 2011-14, the annual reports of the respective courts), the surveillance warrants issued by the presidents or vice-presidents of the four courts which had issued the largest number of those in 2015 were as follows: Year Sofia City Court Specialised Criminal Court Plovdiv Regional Court Stara Zagora Regional Court 2011 6,008 (44.10%) not applicable [6] not specified 872 (6.40%) 2012 5,556 [7] 550 not specified 498 2013 4,324 687 not specified 332 2014 2,298 (41.01%) 1,011 (18.04%) not specified not specified 2015 837 (21.38%) 1,049 (26.79%) 461 (11.78%) 240 (6.13%) 2016 90 (1.91%) 2,179 (46.25%) 485 (10.30%) 385 (8.17%) 2017 196 (4.24%) 1,808 (39.10%) 339 (7.33%) 320 (6.92%) 2018 190 (3.57%) 2,524 (47.71%) 333 (6.25%) 258 (4.84%) 2019 146 (2.71%) 3,006 (55.71%) 355 (6.58%) 271 (5.02%) 2020 120 (2.40%) 2,798 (55.93%) 422 (8.43%) 206 (4.12%) 50. In its annual report for 2016 (at p. 13), the National Bureau noted that although it was getting the largest number of surveillance applications in the country, the Specialised Criminal Court was not adequately staffed and resourced to deal with them properly. An inspection by the Bureau had revealed that that court was not in a position to process correctly the enormous volume of documents relating to such applications. The Bureau drew attention to the problem in its report for 2017 as well (at p. 16). In its report for 2019, the Bureau noted (at p. 16) that the large number of surveillance applications received by the Specialised Criminal Court on the one hand enabled the relevant judges to gain more experience, but on the other hand led to excessive workload, which was conducive to errors. That finding was repeated in the report for 2020 (at p. 27). Manner of examination of secret surveillance applications (a) Relevant statutory provisions and case-law 51. Surveillance applications made outside the framework of already pending criminal proceedings must be examined by the competent court president or vice-president on the papers within forty-eight hours, [8] and that president or vice-president can either issue a warrant or refuse the application, and must give reasons for his or her decision (section 15(1) in fine of the 1997 Act). For terrorist offences, the time-limit for decision is twenty-four hours (section 15(2) of the 1997 Act). When the application is made in the course of criminal proceedings, the law does not lay down a time-limit for ruling on it, [9] but likewise requires a reasoned decision (Article 174 § 4 of the Code of Criminal Procedure). 52. Decisions to allow or refuse a surveillance application cannot be challenged before the administrative courts by way of a claim for judicial review (see опр. № 11281 от 28.10.2015 г. по адм. д. № 10354/2015 г., ВАС, V о.). (b) Information about the courts’ practices relating to the examination of secret surveillance applications emerging from the National Bureau’s annual reports 53. From the National Bureau’s annual reports for 2015 (at pp. 16 and 25), 2016 (at pp. 15-16 and 26), 2017 (at pp. 17 and 27) and 2020 (at p. 29), it emerges that in practice surveillance applications are sometimes allowed in part and refused in part: only as regards certain surveillance techniques, or as regards certain offences, if the application concerns several, or for a shorter duration than requested. 54. From the National Bureau’s annual reports for 2015 (at p. 16), 2016 (at p. 16), 2017 (at pp. 17-19), 2018 (at pp. 15-16), 2019 (at p. 17) and 2020 (at pp. 22-34 and 29) it further emerges that when they refused applications, the judges explained concretely their reasons for doing so: that the application did not originate from a competent authority; that it was not addressed to a competent court; that it did not relate to a relevant offence; that it did not contain enough information to ground a suspicion that the intended surveillance target has been implicated in an offence, or enough reasons why the warrant was to be issued; that it did not explain why a particular surveillance technique was necessary; that (for renewal applications) it did not set out the results already obtained; or that it sought authorisation for surveillance outside the statutory time-limits. According to the Bureau’s annual report for 2020 (at p. 9), the largest number of refusals during that year had been based on the absence of enough information in the surveillance application that the intended targets were implicated in an offence. 55. According to the National Bureau’s annual reports, the judicial decisions to allow or refuse an application for a surveillance warrant each year since 2014 were as follows: Year Applications allowed Applications refused 2014 7,604 (98.07%) [10] 150 (1.93%) 2015 4,034 (85.52%) 683 (14.48%) 2016 4,885 (80.16%) 1,209 (19.84%) 2017 4,624 (77.86%) 1,315 (22.14%) 2018 5,328 (87.36%) 771 (12.64%) 2019 5,396 (89.35%) 643 (10.65%) 2020 5,003 (93.20%) 365 (6.80%) (c) Other official accounts of the courts’ practices (i) In the Sofia City Court in 2013-17 (α) Criminal and disciplinary proceedings against the President of the Sofia City Court 56. In early 2015 the President of the Sofia City Court, who had taken up her duties in 2011, was charged with wilfully issuing surveillance warrants in the absence of the legal prerequisites. She was suspended from her posts as court president and judge, and in March 2015 resigned from the post of president. In early 2016 she was convicted of deliberately authorising the surveillance of an automated centralised police information system operated by the Ministry of Internal Affairs by the Ministry’s internal security department for a period exceeding the statutory maximum, contrary to Article 284c of the Criminal Code (see paragraph 145 below). She was, however, acquitted of the additional charge that the police information system in question was not a proper “object” of surveillance within the meaning of section 12(1) of the 1997 Act (see paragraph 23 (c) above). The first-instance judgment, which was classified (прис. № 1 от 15.01.2016 г. по н. о. х. д. № С-61/2015 г., СГС) concerned a warrant which she had issued in March 2014. It was fully upheld on appeal (see реш. № 42 от 10.01.2017 г. по в. н. о. х. д. № 50/2016 г., САС (apparently not published), and реш. № 57 от 19.04.2017 г. по н. д. № 161/2017 г., ВКС, I н. о.). 57. Parallel to that, in March 2015 the Minister of Justice asked the Supreme Judicial Council to open disciplinary proceedings against the (by then former) President of the Sofia City Court and dismiss her from her post as a judge as well, based on allegations that she had rendered the system of prior judicial authorisations of secret surveillance in the Sofia City Court ineffective. The Supreme Judicial Council at first refused to open such proceedings, but on an application by the Minister in August 2015 the Supreme Administrative Court quashed that refusal (see опр. № 9195 от 03.08.2015 г. по адм. д. № 5340/2015 г., ВАС, VI о.), and the Supreme Judicial Council did open such proceedings. They were later stayed to await the determination of the criminal charges against the (by then former) court president (see paragraph 56 above). In May 2017, after her conviction had become final, the Supreme Judicial Council dismissed her from her post as a judge as well. 58. According to a declaration drawn up by the 2013-18 chairperson of the National Bureau (see paragraphs 109 and 112 below) in February 2020 for the purposes of the present proceedings, and produced by the applicants, the deputies of that President of the Sofia City Court had made “four times as many” violations of the same nature but had not been brought to account for any of them. (β) April 2017 report by the Vice-Presidents of the Sofia City Court 59. In an ad hoc report published in April 2017, two Vice-Presidents of the Sofia City Court recorded a number of shortcomings in the way in which that court had handled surveillance applications addressed to it until about mid-2015. Some of those shortcomings were: (a) between 2009 and mid-2014 the relevant registers had been kept in a way not permitting to see which judge had dealt with a given application; (b) the record-keeping relating to such applications had been highly unsatisfactory; (c) many applications had been allowed even though they had not contained any factual data enabling an assessment of their well-foundedness; (d) there had been many cases of duplication of applications and warrants issued in relation to the same person on the same day; (e) surveillance had been allowed many times with respect to foreign embassies, in breach of international diplomatic law; (f) many applications not referring to any criminal offence, or referring to irrelevant offences, had been allowed; (g) many applications which should have been addressed to other courts had been allowed; (h) until April 2015 all decisions allowing surveillance applications had not contained any reasons; (i) between April and August 2015 those decisions had, with a few exceptions, given only blanket and generalised reasons; (j) in many cases, the surveillance warrants had not been drawn up by the judges but by the requesting authority, and the judges had simply signed them; (k) until April 2015, the post-surveillance reports required to be submitted by surveillance authorities (see paragraph 106 below) had not been brought to the attention of judges, and they had not taken any steps to review them; and (l) the competent judges had, in breach of their duties, failed to exercise any control over the destruction of irrelevant surveillance information. 60. The report went on to describe the steps taken after August 2015 to remedy those shortcomings and ensure the effective examination of all surveillance applications, such as: improved record-keeping; insisting in all cases that the requesting authority provide all materials supporting its application, and actual review of those materials by the judge; giving full reasons both when allowing and when refusing applications, including on whether the information in the supporting materials permitted a conclusion that the intended surveillance target was implicated in a relevant offence; and full control over the post-surveillance reports and the destruction of irrelevant surveillance materials. (γ) Examples of surveillance warrants issued by the Sofia City Courtin 2012-13 61. By way of example, the applicants submitted two surveillance warrants issued by the (then) President of the Sofia City Court in December 2012 and February 2013. Both were templates not mentioning any data about the specific case or about the people to be placed under surveillance, save for a reference to the number and date of the surveillance application, and both authorised the use of several surveillance techniques (visual surveillance, eavesdropping and tapping, and tracking), all for the maximum statutory time-limit of sixty days. [11] (ii) In the Specialised Criminal Court in 2015-19 62. In his annual report for 2015, the President of the Specialised Criminal Court said (at pp. 1-2) that in the middle of the year the number of incoming surveillance applications had dramatically increased – according to him owing to the transfer of jurisdiction to try offences against the Republic (see paragraph 18 above) from the Sofia City Court to his court in June 2015. He and his deputy had thus been faced with a massive increase in their workload (see the table under paragraph 49 above). That is why he had asked the Supreme Judicial Council to appoint a second vice-president of the court. 63. In her annual report for 2018, the President ad interim of the Specialised Criminal Court said (at pp. 7-8) that her and her two deputies’ had again faced a massive workload relating to surveillance applications, which had increased even more during that year (see the table under paragraph 49 above). The annual report for 2019 contained similar findings (at p. 5). 64. In a June 2019 judgment (прис. № 34 от 24.06.2019 г. по н. о. х. д. № 1907/2014 г., СпНС, unclear whether final), the Specialised Criminal Court described in some detail the content of eleven warrants issued either by the Vice-President of the Sofia City Court or the President or Vice-President of the Specialised Criminal Court in 2011-12. It noted that all of them were pre-printed forms with completely blanket contents and without any reference to the specific case to which they related except to the number of the surveillance application. The court further found that all those warrants had in fact been drawn up by others and simply signed by the respective judges, and concluded that there was no basis on which to accept that those judges had in fact verified the legal prerequisites for issuing the warrants. 65. In a December 2019 judgment (прис. № 55 от 09.12.2019 г. по н. о. х. д. № 1590/2019 г., СпНС), the Specialised Criminal Court made similar findings about nineteen surveillance warrants issued by the President and the two Vice-Presidents of that court in 2017-18. The court noted that all of the surveillance applications pursuant to which the warrants had been issued had contained detailed reasons why they were to be allowed. By contrast, the warrants themselves were all one-page documents which did not contain any reference (save for a reference to the numbers of the applications) to the individual cases to which they related, and which were couched in terms general enough to be capable of relating to any possible surveillance application under of the 1997 Act or under the Code of Criminal Procedure. Only the operative provisions of each of the warrants mentioned that the case concerned an alleged offence under Article 321 of the Criminal Code (see paragraph 19 above). All but one had allowed surveillance for the maximum statutory duration of two months, and all had authorised the use of several surveillance techniques: visual surveillance; eavesdropping and tapping; tracking; and marking and checking correspondence or computerised information (see paragraph 11 above). It was thus impossible to speculate about whether the judges who had issued the warrants had in fact reviewed the applications for them (although the absence of review could not be presumed). The court also noted that its statistics for 2017-18 showed that it had on average received twelve or thirteen applications a day in 2017, and thirteen or fourteen applications a day in 2018, and that the practice of not giving individualised reasons was general. Based on its findings about the lack of proper reasons in the warrants, the court excluded the resulting evidence. 66. In February 2021 the Specialised Criminal Court of Appeal quashed that latter judgment. It held, among other things, that it could not be expected that in a decision to issue a surveillance warrant a judge would comment on the evidence. Neither the 1997 Act nor the Code of Criminal Procedure required that. All that the judge examining a surveillance application had to check was whether the formal requirements to allow it were in place (see реш. № 260002 от 10.02.2021 г. по в. н. о. х. д. № 245/2020 г., АСпНС, final). 67. Several leaks which emerged in the first half of 2021 suggested that between July 2020 and February 2021 many opposition politicians and journalists, as well as hundreds of participants in the 2020 anti-government protests in Bulgaria had been unjustifiably placed under secret surveillance on the basis of warrants issued by the Specialised Criminal Court in connection with allegations that they would attempt to carry out a coup d’état. When he spoke about the matter in Parliament on 28 July 2021, the Minister of Internal Affairs stated, among other things, that he had at his disposal documents showing that at least 123 protesters had been placed under surveillance on the basis of warrants issued by the Specialised Criminal Court, and expressed serious misgivings about the lawfulness of that surveillance, which in his view had been authorised uncritically by that court. In July 2021 Parliament set up an ad hoc committee to investigate the matter. The committee adopted its report on 13 September 2021; it has so far remained classified. On 15 September 2021 Parliament approved the report at a plenary sitting closed to the public. (iii) Generally 68. In a February 2014 judgment, the Sofia Court of Appeal held that the use of boilerplate templates for decisions to issue surveillance warrants could be accepted, since, unlike the reasons to refuse a surveillance application, the reasons to allow one did not in practice vary (see реш. № 365 от 14.02.2014 г. по в. н. о. х. д. № 653/2013 г., САС, upheld by реш. № 189 от 03.02.2015 г. по н. д. № 515/2014 г., ВКС, II н. о.). (d) Public reporting requirements 69. The presidents of regional and appellate courts and the President of the Supreme Court of Cassation must set out in the annual reports of their courts (a) the number of warrants issued and (b) the number of evidentiary materials drawn up based on that surveillance (section 29(8) of the 1997 Act). Further vetting by the authorities deploying special means of surveillance 70. The only authorities having the power to deploy special means of surveillance are (a) the Technical Operations Agency attached to the Council of Ministers, (b) the Technical Operations Directorate of the State Agency for National Security, (c) the Intelligence Agency and the intelligence services of the Ministry of Defence (within their specific spheres of competence), and (d) (but only as regards undercover agents, controlled deliveries and pseudo-transactions) the Ministry of Internal Affairs (section 20(1) and (2) of the 1997 Act and Article 175 § 1 of the Code of Criminal Procedure). The explanatory notes to the 2013 bill (no. 354-01-19 ) which brought about the amendment to the 1997 Act which led to that position said that the reason to entrust most surveillance operations to a specialised structure separate from the Ministry of Internal Affairs was to ensure that those deploying special means of surveillance would be detached from those requesting them, and act independently and as a further safeguard against abuse. 71. When they receive a surveillance warrant, the head of the Technical Operations Agency, the head of the State Agency for National Security, the Secretary General of the Ministry of Internal Affairs, or a duly authorised deputy, as the case may be, must issue a follow-up order for the surveillance to go ahead (section 16(1) and (2) of the 1997 Act and Article 175 § 2 of the Code of Criminal Procedure). That additional step may be skipped in urgent cases, but the head of the respective authority, or the duly authorised deputy, must then be informed immediately (section 17 of the 1997 Act). 72. According to the National Bureau’s annual reports, that additional step was skipped in the following number of cases: Year Follow-up order by head of respective authority skipped 2014 742 (17.70%) 2015 604 (22.09%) 2016 685 (25.28%) 2017 640 (23.29%) 2018 607 (19.93%) 2019 548 (16.56%) 2020 435 (14.38%) 73. Those surveillance authorities must not go ahead with the surveillance or must discontinue it if (a) the surveillance warrant has been issued with respect to an offence which is not among those listed in section 3(1) of the 1997 Act, or if (b) the surveillance application or the surveillance warrant contain obvious mistakes (section 22(3)(1) and (3)(2) of the 1997 Act). In such situations, the surveillance authority must notify the requesting authority and the judge who has issued the surveillance warrant. The judge must then cancel, vary or maintain the warrant, as the case may require, send his or her decision to the surveillance authority, and inform the requesting authority. If the judge varies or maintains the warrant, the surveillance operation must go ahead (section 22(5) of the 1997 Act). 74. In its annual report for 2015, the National Bureau said (at p. 17) that even before the amendments to the 1997 Act which introduced that additional safeguard had come into force in June and September 2015, it had instructed the surveillance authorities not to proceed with surveillance if they spotted such mistakes in surveillance applications or warrants. 75. According to the National Bureau’s annual reports for 2016 (at p. 17), 2018 (at p. 17) and 2019 (at pp. 18-19), the surveillance authorities had triggered that additional safeguard in the following number of cases: Year Referrals under section 22(3) of the 1997 Act 2016 9 2018 3 2019 4 76. The Bureau’s annual reports for 2014, 2015, 2017 and 2020 do not contain such information. Retrospective authorisation in urgent cases 77. If there is an immediate risk that a serious intentional offence (among those listed in section 3(1) of the 1997 Act – see paragraph 18 above) is about to be committed, or a risk of an immediate threat to national security, special means of surveillance may be deployed without a judicial warrant, by order of the head of the Technical Operations Agency, the head of the State Agency for National Security, or the Secretary General of the Ministry of Internal Affairs (section 18(1) of the 1997 Act). The surveillance operation must stop if the competent judge has not issued a warrant within twenty-four hours; that judge must also decide whether any already obtained information is to be kept or destroyed (section 18(2)). If issued, the warrant retrospectively validates the surveillance steps taken before it has been issued (section 18(3)). 78. According to the National Bureau’s annual reports, each year that urgent procedure was used with respect to the following number of persons: Year Persons placed under surveillance without a prior warrant 2014 125 (3.00%) 2015 29 (1.10%) 2016 49 (1.78%) 2017 28 (1.02%) 2018 7 (0.23%) 2019 15 (0.45%) 2020 4 (0.13%) Maximum duration of secret surveillance 79. By section 21(1) and (2) of the 1997 Act and Article 175 §§ 3 and 4 of the Code of Criminal Procedure, the maximum amount of time during which special means of surveillance may be used is: (a) up to twenty days, when used to identify persons (see paragraph 23 (c) above); this may be prolonged, by way of renewal applications, for up to a total of sixty days; (b) up to two years, when used in relation to activities pertaining to national security (see paragraph 23 (b) above), to prevent serious intentional offences against the Republic; this may be prolonged, by way of renewal applications, for up to a total of three years; (c) up to two months in all other cases (see paragraph 23 (a), (d) and (e) above); this may be prolonged, by way of renewal applications, for up to a total of six months. [12] 80. In its annual report for 2018, the National Bureau said that the two ‑ year duration of the time-limit for surveillance on national-security grounds (see paragraph 79 (b) above) was one of the possible reasons for the reduced number of surveillance applications made by the State Agency for National Security since 2015 (see the table under paragraph 38 above). 81. The time-limit starts to run from the date set out in the surveillance warrant (section 21(4) of the 1997 Act). Situations in which secret surveillance must be stopped 82. By section 22(1), (2) and (3) of the 1997 Act and Article 175 § 6 of the Code of Criminal Procedure, apart from the (special) cases when the surveillance authority must stop the surveillance if it finds that it concerns an irrelevant offence or that the surveillance application or warrant are tainted by an obvious mistake (see paragraph 73 above), the surveillance authority must stop the surveillance if (a) its permitted duration has expired; (b) its aims have been attained; (c) it does not yield results; (d) there is a risk that the techniques used for it will be revealed; or (e) it has become impossible. 83. In each of those cases, the surveillance authority must notify the judge who has issued the warrant (section 22(4) of the 1997 Act and Article 175 § 7 of the Code of Criminal Procedure). Section 22(4) requires notification to the requesting authority as well. Article 175 § 7 requires the notification to set out reasons in all possible cases, whereas section 22(4) only requires reasons if the surveillance has been stopped because (a) there was a risk that the techniques used for it would be revealed or (b) it has become impossible. Processing of information obtained through special means of surveillancePurposes for which the information may be used Purposes for which the information may be used Purposes for which the information may be used 84. The general rule is that information obtained through special means of surveillance may only be used to prevent, detect or prove criminal offences, or to protect national security (section 32 of the 1997 Act). 85. Using such information for another purpose is a criminal offence, which is aggravated if committed by a public official who has obtained access to the information by virtue of his or her office (Article 145a §§ 1 and 2 of the Criminal Code). It appears that so far there has been only one conviction under that provision, that of a high-ranking police officer who was leaking surveillance data to journalists and others (see прис. № 58 от 11.06.2014 г. по н. о. х. д. № 457/2012 г., ОС-Велико Търново, upheld in relevant part by реш. № 149 от 31.07.2015 г. по в. н. о. х. д. № 389/2014 г., АС-Варна, appeal on points of law withdrawn: see опр. Р-12 от 19.01.2016 г. по н. д. № 1372/2015 г., ВКС, III н. о.). Means of acquiring electronic communications 86. For electronic communications, all communications service providers in the country are under a duty to enable the two main surveillance authorities (the Technical Operations Agency and Technical Operations Directorate of the State Agency for National Security – see paragraph 70 above) to have real-time access to all communications passing through their networks, so that those could be intercepted in line with the 1997 Act (section 304 of the Electronic Communications Act 2007). Communications service providers have the same duty to the courts and the investigating authorities (Article 172 § 3 of the Code of Criminal Procedure). They must at their own expense install and operate interfaces which can automatically intercept and securely transmit communications to the surveillance authorities (sections 305(1), 308 and 309 of the 2007 Act). Stages of processing (a) “Primary recording” and “derivative data carrier” 87. Each covert surveillance technique (except the use of undercover agents – see реш. № 112 от 02.06.2016 г. по в. н. о. х. д. № 81/2016 г., ВтАС, upheld by реш. № 198 от 05.12.2016 г. по н. д. № 766/2016 г., ВКС, I н. о.) must result in a recording of the information obtained by it: a photograph, a video-recording, or an audio-recording (sections 11 and 24 of the 1997 Act). 88. The surveillance authority must keep the “primary recording” for as long as the surveillance operation is under way (section 25(6) of the 1997 Act). That “primary recording” is used to create a “derivative data carrier”, which the surveillance authority must send to the requesting authority, along with (if requested by the latter) any photographs, records, blueprints or plans (section 25(1), (4) and (5)). 89. The “derivative data carrier” may be in writing or in another (in practice electronic) form (section 25(1) of the 1997 Act). If technically feasible, it must be made available to the requesting authority via an automated network (section 25(2)). Its content must fully match that of the “primary recording” (section 25(3)). (b) Evidentiary material 90. If, based on that “derivative data carrier”, the requesting authority finds that the surveillance has yielded useful information, it must immediately (and in any event not more than ten days after the surveillance has ended) advise the surveillance authority to prepare evidentiary material ( веществени доказателствени средства ) on the basis of the “primary recording” (sections 26 and 27(2) of the 1997 Act). Although the 1997 Act does not specify what exactly that evidentiary material consists of, from the criminal courts’ case-law it transpires that it is computer files containing audio- or video-recordings, as the case may be (see, for instance, прис. № 50 от 03.06.2011 г. по н. о. х. д. № 424/2011 г., ОС-Варна, upheld in relevant part by реш. № 157 от 21.11.2011 г. по в. н. о. х. д. № 313/2011 г., ВнАС, and then by реш. № 83 от 19.06.2012 г. по н. д. № 3135/2011 г., ВКС, II н. о.; реш. № 172 от 18.04.2012 г. по н. д. № 398/2012 г., ВКС, I н. о.; прис. № 56 от 16.11.2016 г. по н. о. х. д. № 379/2014 г., ОС-Плевен, upheld by реш. № 124 от 03.05.2017 г. по в. н. о. х. д. № 69/2017 г., ВтАС, apparently not appealed against; and реш. № 1 от 17.02.2017 г. по н. д. № 1143/2016 г., ВКС, III н. о.). That evidentiary material is not to be confused with physical evidence ( веществени доказателства ), and the court trying a criminal case cannot therefore lawfully order its destruction (see опр. № 145 от 17.06.2016 г. по в. ч. н. д. № 156/2016 г., ОС-Видин). When the surveillance authority prepares that evidentiary material, it must draw up a record setting out the time, place and physical conditions of the surveillance, the equipment and techniques used, any data obtained about the target, and the text of the evidentiary material (sections 27(1) and 29(4) of the 1997 Act and Article 132 § 2 of the Code of Criminal Procedure). In that record, it must also refer to the surveillance application, the surveillance warrant, and the follow-up order (and to the consent of the target, if the surveillance was carried out to protect a person or with respect to a cooperating witness) (section 29(3) of the 1997 Act and Article 132 § 3 of the Code of Criminal Procedure). Although the 1997 Act does not say that in terms, in practice that evidentiary material may not reproduce all parts of the “primary recording” (see, for instance, реш. № 384 от 08.07.2017 г. по в. н. о. х. д. № 1182/2016 г., САС, upheld by реш. № 314 от 25.01.2018 г. по н. д. № 1118/2017 г., ВКС, I н. о.). This also appears to follow from the rule that any parts of the “primary recording” which are not used for its preparation must be destroyed (see paragraph 94 below). 91. The evidentiary material must be prepared in two copies, one of which must be sent under seal to the requesting authority, and the other, again under seal, to the judge who issued the surveillance warrant. That must happen not more than twenty-four hours after they are prepared (section 29(1) of the 1997 Act and Article 176 § 1 of the Code of Criminal Procedure). The requesting authority may require additional copies of that material (section 29(1) in fine and Article 176 § 2). 92. Evidentiary material received by the requesting authority must be kept by it until criminal proceedings are opened in connection with it; when such proceedings are opened, the material is to be kept by the prosecutor’s office and the court dealing with the case (section 31(1) and (2) of the 1997 Act). The Act does not lay down any rules on how that material is to be stored. According to the Government, the matter was regulated by internal rules of the relevant authorities, except for cases in which the material was for some reason regarded as classified, in which case its storage was governed by the relevant provisions of the Protection of Classified Information Act 2002 (see paragraphs 102 and 103 below). According to the Government, once criminal proceedings were opened, the evidentiary material was stored in accordance with the rules on the storage of evidence by the prosecuting authorities and the courts. Article 125 § 3 of the Code of Criminal Procedure provides that evidentiary material prepared on the basis of surveillance is to be placed in the case file of the criminal case. Neither the Rules on the administrative services of the courts, issued by the Supreme Judicial Council in 2017, nor the Rules on the administrative services of the prosecutor’s offices, issued by the Supreme Judicial Council in 2013, which govern the storage of case files by, respectively, the courts and the prosecuting authorities, contain provisions specifically dealing with the storage or destruction of evidentiary material prepared on the basis of surveillance. 93. According to the National Bureau’s annual reports, the number of evidentiary materials produced on the basis of information obtained through surveillance and the ratio between those evidentiary materials and the number of persons placed under surveillance each year was as follows: Year Number of evidentiary materials Ratio relative to the number of persons placed under surveillance 2010 3,461 60.06% 2011 3,603 44.02% 2012 3,347 56.71% 2013 1,602 48.38% 2014 1,084 24.46% 2015 1,677 57.10% 2016 1,431 46.33% 2017 1,670 55.52% 2018 1,714 56.27% 2019 1,124 33.96% 2020 1,089 36.01% (c) Destruction of irrelevant information 94. If evidentiary material is prepared, (a) any parts of the “primary recording” which are not used for its preparation and (b) the “derivative data carrier” must be destroyed, both by the surveillance and by the requesting authority, within ten days after the end of the surveillance. That must be done and recorded by three-member commissions appointed by the heads of the respective authorities (section 31(3) of the 1997 Act). 95. If, conversely, the surveillance has not yielded any useful information, the surveillance authority does not have to prepare evidentiary material and must destroy any information obtained within ten days, in the same way as that set out in paragraph 94 above (section 28 read in conjunction with section 31(3) of the 1997 Act). 96. There are three reported cases in which police officers were given disciplinary punishments for failing to ensure the timely destruction of surveillance information (see реш. № 2466 от 11.10.2013 г. по адм. д. № 1804/2013 г., АдмС-Варна; реш. № 100 от 20.03.2019 г. по адм. д. № 708/2018 г., АдмС-Добрич; and реш. № 101 от 20.03.2019 г. по адм. д. № 709/2018 г., АдмС-Добрич). 97. In all cases in which the destruction of surveillance information is legally required, the surveillance authority must within seven days send the record attesting the destruction to the requesting authority, along with the surveillance application and the surveillance warrant (section 31(4) of the 1997 Act). The requesting authority must then keep those (section 31(5)). 98. By way of exception to the normal destruction rules, any information obtained through surveillance on national-security grounds must be kept by the relevant requesting authority (the respective directorate of the State Agency for National Security, the military intelligence service attached to the Minister of Defence, and the National Intelligence Service) for fifteen years after the end of the surveillance (section 31(6) of the 1997 Act). It must after that be destroyed by a special three-member commission appointed by the head of the respective authority (section 31(7)). 99. All of the above rules on the destruction of information apparently apply only when the surveillance has taken place outside the framework of already pending criminal proceedings. When it has taken place in the course of criminal proceedings, the rule is that when the surveillance ends, the judge who has issued the warrant must be informed of its results. If any information obtained as a result of the surveillance is not used to prepare evidentiary material, that judge must order its destruction (Article 175 § 7 of the Code of Criminal Procedure). In its reports for 2015 (at p. 23), 2016 (at p. 21), 2019 (at p. 20) and 2020 (at p. 36), the National Bureau noted that the discrepancy between the two regimes sometimes caused delays in the destruction. Rules on the permissible uses of surplus surveillance information 100. If the surveillance yields results which surpass the purpose for which it was originally sought, the head of the Technical Operations Agency or of the State Agency for National Security (depending on which one of the two has carried out the surveillance) must inform the relevant requesting authority of those surplus results within twenty-four hours (section 30(1) of the 1997 Act). The requesting authority must in turn inform the relevant authority within a further twenty-four hours (section 30(2)). A special rule governs the situation when the surplus results relate to the officer who has requested the surveillance or a superior of that officer: in that case, the head (or an expressly authorised deputy) of the relevant surveillance authority (the Technical Operations Agency, the State Agency for National Security, or the Ministry of Internal Affairs) must immediately send the surplus surveillance materials to the Chief Prosecutor or an expressly authorised deputy (section 30(3)). 101. Such surplus results may be used as evidence in criminal proceedings only if they concern another relevant serious intentional offence (Article 177 §§ 2 and 3 of the Code of Criminal Procedure). Relevant provisions of the Protection of Classified Information Act 2002 102. Information about special means of surveillance (technical devices and/or the manner in which they have been used) used in the manner provided for by law is a State secret (point 6 of part II of Schedule No. 1 to the Protection of Classified Information Act 2002). Until 2013, so was information obtained as a result of the use of such means (point 8 of part II of Schedule No. 1). In 2013, point 8 was repealed. 103. In a 2014 interpretative decision dealing chiefly with the question whether the public could be excluded from hearings in criminal cases in which evidence obtained through special means of surveillance was being presented (тълк. реш. № 4 от 03.12.2014 г. по т. д. № 4/2014 г., ВКС, ОСНК), the Supreme Court of Cassation noted, among other things, that the effect of the repeal of point 8 was that the fact that evidentiary material had been prepared on the basis of information obtained through special means of surveillance was no longer in itself sufficient to treat that evidentiary material as classified information, even if it mentioned the type of means (visual surveillance, tapping, tracking, and so on) used to obtain the information. 104. In a statement enclosed with the Government’s observations, the Technical Operations Agency (see paragraph 70 (a) above) said that according to its interpretation, the effect of point 6 of part II of Schedule No. 1 to the Protection of Classified Information Act 2002 was that both the “primary recording” obtained as a result of surveillance and the “derivative data carrier” were classified information (see paragraphs 87 and 88 above). Authorities supervising the use of special means of surveillanceJudges who have issued the surveillance warrants Judges who have issued the surveillance warrants Judges who have issued the surveillance warrants 105. As noted in paragraph 83 above, when a surveillance operation ends, for whatever reason, the surveillance authority must notify judge who has issued the surveillance warrant. 106. Within one month after the end of a surveillance operation, the requesting authority must report to that judge. The report must specify the type of special means of surveillance used, the beginning and end of the surveillance, and whether the surveillance operation has resulted in the preparation of evidentiary material or whether the information obtained has been destroyed (section 29(7) of the 1997 Act). If evidentiary material has been prepared on the basis of the information obtained as a result of the surveillance (see paragraph 90 above), a copy of that evidentiary material, and of the accompanying records, must be sent, under seal, to that judge (see paragraph 91 above). 107. As noted in paragraph 99 above, for surveillance in the course of criminal proceedings, the judge who has issued the warrant must be informed immediately after the end of the surveillance, and if the information obtained thereby is not used to prepare evidentiary material, he or she must order its destruction. The same judge must also receive a sealed copy of any evidentiary material resulting from a surveillance operation within twenty-four hours of its preparation (see paragraph 91 above). National Bureau 108. The National Bureau – which was re-established as an “independent State authority” in 2013, was first elected in December 2013, and started its work in the beginning of 2014 (see paragraph 16 above) – is tasked with (a) supervising the procedures for authorising, deploying and using special means of surveillance, and the storage and destruction of the information obtained by such means, and with (b) protecting the rights of the persons affected by the unlawful use of such means (section 34b(1) of the 1997 Act). It is a permanent body assisted by its own administration (section 34b(4)). According to the Bureau’s annual reports, in 2014-15 its administration had consisted of fifteen employees; in 2016-20, that number was reduced to fourteen; they all have the requisite security clearance (“top secret”). The Bureau must report annually to Parliament (section 34b(7)). (a) Manner of election and term of office of the National Bureau’s members (i) Statutory provisions 109. The National Bureau has a chairperson, a deputy chairperson and three members, all elected by Parliament for five-year terms (section 34c(1) of the 1997 Act). They must have at least eight years of legal experience or experience in the law-enforcement or the security services, and must obtain the highest possible security clearance – “top secret” (section 34c(2) of the 1997 Act). Security clearances for that highest level of classification are issued after a special vetting procedure which must be carried out by the State Agency for National Security (section 49(1) and (2) of the Protection of Classified Information Act 2002). [13] 110. After the nominations for members of the National Bureau are received by Parliament (the 1997 Act does not say who can make those nominations, but both in 2013 and in 2018 each of the nominations was made by a different parliamentary group, based on special rules of procedure adopted by Parliament on each of those occasions), the head of the specialised parliamentary committee sends all materials about the nominee to the State Agency for National Security for a security vetting, which must be completed within a month. After that the parliamentary committee examines the nominations within seven days, and then interviews the nominees considered eligible, and within a further seven days submits a report. After that Parliament votes on each of the nominees individually, and then chooses which ones among them will become chairperson and deputy chairperson. They are then all sworn in (section 34d of the 1997 Act). 111. After the end of their term of office, the members of the National Bureau they must be restored to their previous posts (section 34c(4)). Their terms of office may be terminated prematurely by Parliament if (a) they resign, (b) they have been in fact unable to carry out their duties for three months in a row, (c) they have ceased being eligible to occupy their post, or (d) they have been declared in conflict of interests following an official procedure under the special anti-corruption legislation (section 34c(6)). (ii) Members of the National Bureau in 2013-18 and since 2018 112. Three out of the five original members of the National Bureau, elected in 2013, including its chairperson and its deputy chairperson, had legal education and legal experience. Only one of the members elected in December 2018 (who was a member during the 2013-18 term as well) had legal education and experience (as a lawyer in private practice). According to the Bureau’s official website, [14] immediately before his election to the post in December 2018 the current chairperson had worked for ten years (2008-18) at the State Agency for National Security; the deputy chairperson elected in 2018 had also been employed for twenty-six years (1981-2007) by the security services; and one of the regular members had worked for many years (1983-2009) at the Ministry of Internal Affairs. 113. For the three regular members of the National Bureau, the current term of office (2018-23) is their second; all three were members in 2013-18 as well. 114. The National Bureau’s original deputy chairperson, elected in 2013, had his term of office prematurely terminated by Parliament in March 2018 on the ground that he had ceased being eligible to be a member of the Bureau (see paragraph 111 (c) above) because in July 2017 the State Agency for National Security had revoked his security clearance (it later transpired that the reason cited for the revocation had been that he had disclosed information about the use of special means of surveillance to several people, in breach of the legal requirement to keep such information secret), and in January 2018 the Supreme Administrative Court had finally upheld that revocation. [15] 115. In early June 2021 the National Bureau’s deputy chairperson elected in 2018 was placed under various sanctions by the authorities of the United States of America pursuant to section 1(a)(ii)(B)(1) of Executive Order 13818 (Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption), issued in 2017, and to section 7031(c) (Anti ‑ Kleptocracy and Human Rights) of the annual Department of State, Foreign Operations, and Related Programs Appropriations Act owing, respectively, to his being “responsible for or complicit in, or ha[ving] directly or indirectly engaged in ... corruption”, and to his being “involved in significant corruption”. In mid-June 2021 he resigned from his post, and on 28 July 2021 Parliament unanimously accepted his resignation. (b) Powers of the National Bureau (i) To access materials 116. When carrying out its duties, the National Bureau may (a) seek relevant information from the authorities entitled to request surveillance, the judges dealing with surveillance applications, and the surveillance authorities, and (b) inspect the materials (surveillance applications, warrants and follow-up orders and records relating to the destruction of surveillance information) and registers kept by those authorities (section 34f(1)(1) and (1)(2) of the 1997 Act). 117. Both the members of the National Bureau and its employees can access (a) any documents relating to the use or deployment of special means of surveillance, (b) any documents relating to the storage or the destruction of materials obtained through such means, and (c) any premises containing such documents (section 34f(4) of the 1997 Act). 118. In its report for 2017, the National Bureau said (at p. 23) that the State Agency for National Security was not allowing it to inspect the materials which had prompted the surveillance applications made by it. The Agency was thus preventing effective supervision by the Bureau, since one of the aspects of that supervision was whether surveillance applications were based on genuine suspicions of criminal conduct. The Bureau also said (at p. 24) that owing to the many instances of provision of incorrect information by the Technical Operations Agency, in 2014-17 it had had to make repeat requests for information to that Agency in about 200 individual cases. It was hard for the Bureau to ascertain whether that had been a deliberate obstruction intended to conceal irregularities. 119. In November 2015 the Chief Prosecutor issued an instruction to all prosecutors about the manner in which the National Bureau was to be provided access to materials held by the prosecuting authorities in the course of its inspections. According to point 7 of that instruction (as partly amended in April 2019), members of the Bureau and its employees were to be given access to: surveillance applications, information notes enclosed with those, surveillance warrants (or judicial decisions to refuse to issue such warrants), follow-up surveillance orders, requests to stop surveillance, post-surveillance reports, documents attesting that surveillance material has been destroyed or that evidentiary material had been produced pursuant to it, relevant registers, internal organisational materials, and other relevant documents issued by the authorities requesting surveillance, the judges authorising it, or the surveillance authorities. By point 8 of the instruction (as partly amended in April 2019), members of the Bureau and its employees could not be given access to any case file materials which fell outside the strict bounds of the Bureau’s competence – that is, materials not among those exhaustively listed in point 7. They could thus not see the entire case files of any preliminary or criminal investigations held by the prosecuting authorities, or assess the materials which had served to support a surveillance application or the results or evidence obtained through surveillance (points 8.1 and 8.2 of the instruction). Any requests by them for access to evidentiary material in the course of an inspection were subject to approval by the competent prosecutor (point 8.3 of the instruction). (ii) To give instructions and set standards 120. The National Bureau may give binding instructions to the relevant authorities (section 34f(1)(3)). It may also set standards and templates for the relevant registers and for the handling of the relevant materials (section 34f(2) and (3)). 121. According to its annual reports, throughout its existence the National Bureau has given the following number of instructions: Year Number of instructions 2014 3 2015 49 2016 3 2017 3 2018 1 2019 7 2020 2 (iii) To bring irregularities to the attention of the competent authorities 122. If the National Bureau finds that special means of surveillance have been used or deployed unlawfully, or that the materials obtained through such means have been stored or destroyed unlawfully, it must bring the matter to the attention of the prosecuting authorities and inform the heads of the relevant requesting and surveillance authorities (section 34f(5) of the 1997 Act). 123. If the National Bureau finds that a judge has unlawfully authorised the use of special means of surveillance, it must bring the matter to the attention of the prosecuting authorities and inform the Supreme Judicial Council and the Minister of Justice (section 34f(6) of the 1997 Act). (iv) Number of inspections by the National Bureau 124. According to the National Bureau’s annual reports, it carried out the following number of inspections each year since 2014: Year Number of inspections 2014 “more than” 200 2015 242 2016 287 2017 323 2018 133 2019 230 2020 240 Parliamentary committee 125. The other body which has the task of supervising the procedures for authorising, deploying and using special means of surveillance, and the storage and destruction of the information obtained by such means, is a standing parliamentary committee – the Parliamentary Committee for Control of the Security Services, of the Application and Use of Special Means of Surveillance, and of Access to the Data under the Electronic Communications Act (section 34h(1) of the 1997 Act, Rule 18 § 1 (4)(a) of the 2017-21 Rules of the National Assembly (superseded by Rule 21 § 7 of the 2021 Rules), and Rule 17 § 1 (9)(a) of the Committee’s Rules). The Committee must report to Parliament on those matters each year (Rule 18 § 2 (1) of the 2017-21 Rules of the National Assembly, and Rule 17 § 1 (10)(a) of the Committee’s Rules). It has the power to subpoena officials (section 34h(2) of the 1997 Act). It is also involved in the election of the members of the National Bureau (see paragraph 110 above), and supervises the Bureau itself (Rule 5 § 7 of the Committee’s Rules). (a) Manner of election of the Committee’s members 126. The Committee has nine members, who come from all parliamentary groups, pro rata the number of their members (Rule 4 of the Committee’s Rules). (b) Powers of the Committee 127. The Committee can (a) examine complaints by individuals and organisations about irregularities in the work of the security services, and (b) refer matters to the prosecuting authorities, if it establishes illegalities as a result of its inspections or on the basis by individual complaints (Rule 17 § 1 (11) and (12) of the Committee’s Rules). 128. According to its annual reports, the Committee had received three complaints in 2014, six complaints in 2015, four complaints in 2016, seven complaints in 2017, and four complaints in 2018. Only the report for 2018 made it clear how many of those complaints had related specifically to secret surveillance (the Committee has other competences as well – see paragraphs 205 to 211 below). The Committee’s annual reports for 2016, 2017, 2018 and 2019 do not mention any inspections carried out by it. The annual report of the Specialised Criminal Court for 2016 mentions (at p. 2) that in July of that year the Committee had carried out a routine inspection there and had not found any irregularities. Notification of persons placed under secret surveillance 129. The general rule is that all persons who have learned about the use of special means of surveillance must not divulge that information (section 33 of the 1997 Act). 130. The National Bureau must, however, on its own initiative notify individuals who have been placed under secret surveillance unlawfully (section 34g(1) of the 1997 Act). But such notification is not required if (a) it may defeat the purpose of the surveillance, (b) reveal the techniques or equipment used to carry out the surveillance, or (c) entail a risk to the life of an undercover agent or his or her relatives or friends (section 34g(2)). The law does not lay down any requirements about the wording or content of the notification. In a statement drawn up for the purposes of these proceedings, the National Bureau said that according to its internal rules the notification specifies: (a) the number of the surveillance application; (b) the requesting authority; (c) the number of the surveillance warrant; (d) the authority which has issued that warrant; and (e) the period during which there has been unlawful surveillance. 131. In three examples provided by the applicants, and apparently relating to situations under section 34g(2) of the 1997 Act, the notifications by the National Bureau read: “The [National Bureau] carried out an inspection pursuant to your complaint no. ..., and came to a decision, and I therefore inform you, pursuant to section 34g(1) of [the 1997 Act], that you have not been subjected unlawfully to special means of surveillance.” 132. In one of those cases, it later transpired that there had in fact been surveillance and irregularities in it, on whose basis the relevant court excluded the resulting evidence from the criminal case against the targets of the surveillance (see прис. № 13 от 09.03.2018 г., н. о. х. д. № 727/2015 г., ОС-Хасково, unclear whether final; according to the Government, the appeal proceedings are still pending). 133. In two decisions given in 2016 (unpublished since both cases were classified; copies were provided by the applicants: опр. № 18 от 26.04.2016 г. по адм. д. № С-2/2016 г., ВАС, VII о., and опр. № 28 от 09.06.2016 г. по адм. д. № С-14/2016 г.), the Supreme Administrative Court held that those notifications by the National Bureau were not amenable to judicial review. 134. The 1997 Act does not require the National Bureau to respond to complaints by individuals, but in practice invariably investigates them, and is required to do so under rule 8(1)(9)(a) of its Internal Rules, so long as the complaints are “reasoned”. 135. According to the National Bureau’s annual reports, it has received the following number of complaints and has made the following number of notifications under section 34g of the 1997 Act: Year Complaints Notifications 2014 27 4 2015 108 10 2016 86 5 2017 133 2 (to the same individual) 2018 110 – 2019 46 (10 of which invalid and not acted on) 2 2020 45 (14 of which invalid and not acted on) – Civil liability of the authorities for unlawful secret surveillance 136. Section 2(1)(7) of the State and Municipalities Liability for Damage Act 1988, added in March 2009, provides that the State is liable for damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special means of surveillance. 137. Some case-law has already accumulated under that provision. 138. The courts have so far clarified that: (a) section 2(1)(7) applies only prospectively, for secret surveillance which has taken place after its entry into force (see реш. № 61 от 05.03.2012 г. по гр. д. № 536/2011 г., ВтАС, appeal on points of law not admitted by опр. № 1435 от 15.12.2012 г. по гр. д. № 815/2012 г., ВКС, III г. о.); (b) a claim for damages under section 2(1)(7) cannot be brought against the court which has issued the surveillance warrant but, as the case may be, against (i) the authority which has applied for the warrant, if it has been issued; (ii) the authority which has deployed special means of surveillance, if no warrant has been applied for or has been refused, or the authority has unlawfully proceeded without a warrant (under the provision of the 1997 Act, section 18, which authorises that in urgent cases – see paragraph 77 above); or (iii) the authority which has used the surveillance materials (see опр. № 3658 от 10.08.2015 г. по гр. д. № 126/2015 г., ОС ‑ Благоевград, upheld by опр. № 2987 от 28.10.2015 г. по в. ч. гр. д. № 3999/2015 г., САС, appeal on points of law not admitted by опр. № 89 от 01.04.2016 г. по ч. гр. д. № 240/2016 г., ВКС, I г. о.; опр. № 240 от 28.03.2016 г. по в. ч. гр. д. № 171/2016 г., ОС ‑ Перник, appeal on points of law not admitted by опр. № 344 от 19.09.2016 г. по ч. гр. д. № 3228/2016 г., ВКС, III г. о.; опр. от 06.01.2017 г. по гр. д. № 5567/2016 г., СГС, upheld by опр. № 1284 от 12.04.2017 г. по в. ч. гр. д. № 1349/2017 г., САС, appeal on points of law not admitted by опр. № 303 от 22.08.2017 г. по ч. гр. д. № 2731/2017 г., ВКС, III г. о.; and реш. № 203 от 27.02.2019 г. по гр. д. № 5061/2017 г., ВКС, III г. о.); (c) it is for the claimant to specify, in the statement of claim, which authority has used special means of surveillance with respect to him or her, and to direct the claim against that authority (see опр. № 778 от 06.03.2018 г. по в. гр. д. № 1063/2018 г., САС, unclear whether final); (d) a civil court dealing with a claim for damages under section 2(1)(7) can rely on the National Bureau’s findings of fact but is not bound by the Bureau’s assessment of whether the surveillance was unlawful (see № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о.); (e) the mere authorisation to use special means of surveillance can be grounds for liability under section 2(1)(7); their subsequent deployment goes only to the quantum of damages (see № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о.); (f) liability under section 2(1)(7) can arise if the surveillance warrant has been issued in relation to an offence which by law cannot be prevented or investigated through such means, or the application for a warrant has been made by an incompetent authority or was incomplete, but not if the application has been duly made, since the civil courts dealing with claims for damages under that provision cannot gainsay whether the judges who have issued a surveillance warrant have correctly assessed the need for surveillance on the facts (ibid., and реш. № 203 от 27.02.2019 г. по гр. д. № 5061/2017 г., ВКС, III г. о.); (g) failure to comply with the rules governing the timely destruction of surveillance information (see paragraphs 94 and 95 above) is not in itself grounds for liability under section 2(1)(7) (see реш. № 6303 от 10.10.2018 г. по гр. д. № 11689/2016 г., СГС (final), rectified with реш. № 3 от 02.01.2019 г. по гр. д. № 11689/2016 г., СГС); and (h) the limitation period for bringing a claim under section 2(1)(7) (five years – section 110 of the Obligations and Contracts Act 1950; see also Harizanov v. Bulgaria (dec.), no. 53626/14, § 52, 5 December 2017) starts to run when the person concerned is notified by the National Bureau that he or she has been placed under surveillance unlawfully (see paragraph 130 above), because without such notification that person had no means of vindicating his or her rights (see реш. № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о.). 139. The only form of relief available in proceedings under the 1988 Act is money damages (sections 4(1) and 8(1)). In cases under section 2(1)(7), the courts have so far awarded damages ranging from 2,000 to 27,000 Bulgarian levs (BGN) (1,023 to 13,805 euros (EUR)) in respect of various instances of unlawful use of special means of surveillance: (a) use of such means in relation to offences in respect of which this is not authorised by the law and in the absence of sufficient factual justification in the surveillance application (see реш. № 1811 от 21.07.2017 г. по в. гр. д. № 615/2017 г., САС, upheld by реш. № 166 от 03.08.2018 г. по гр. д. № 4454/2017 г., ВКС, IV г. о., and реш. № 1960 от 30.07.2019 г. по гр. д. № 2052/2018 г., САС, appeal on points of law not admitted by опр. № 424 от 15.05.2020 г. по гр. д. № 4684/2019 г., ВКС, III г. о.); (b) obtaining a warrant for renewed surveillance without fresh justification and surveillance beyond the time-limits (see реш. № 2808 от 04.05.2018 г. по гр. д. № 11366/2016 г., СГС, upheld by реш. № 1034 от 01.05.2019 г. по в. гр. д. № 5808/2018 г., САС, unclear whether final); (c) obtaining a surveillance warrant from an incompetent judge and without providing sufficient justification in the surveillance application (see реш. № 12538 от 22.12.2020 г. по в. гр. д. № 1690/2020 г., САС, appeal on points of law not admitted by опр. № 60753 от 04.11.2021 г. по гр. д. № 1845/2021 г., ВКС, III г. о.); (d) obtaining a surveillance warrant from an incompetent judge and surveillance outside the relevant time-limit (see реш. № 312 от 16.10.2020 г. по гр. д. № 238/2020 г., ОС-Бургас, upheld by реш. № 13 от 19.02.2021 г. по в. гр. д. № 474/2020 г., АС-Бургас, appeal on points of law not admitted by опр. № 60653 от 12.10.2021 г. по гр. д. № 1872/2021 г., ВКС, IV г. о.), and реш. № 262304 от 07.04.2021 г. по гр. д. № 8701/2019 г., СГС, unclear whether final); (e) obtaining a surveillance warrant without providing enough factual data in the initial application (and in a renewal application) and without having enough information that the person sought to be placed under the surveillance could in fact be suspected of an offence (see реш. № 6303 от 10.10.2018 г. по гр. д. № 11689/2016 г., СГС (final), rectified with реш. № 3 от 02.01.2019 г. по гр. д. № 11689/2016 г., СГС); (f) obtaining a surveillance warrant solely on the basis of an anonymous signal and without detailing the previous, if any, steps in the investigation (see реш. № 7225 от 20.11.2018 г. по в. гр. д. № 16408/2017 г., СГС (final), overturning реш. № 192358 от 11.08.2017 г., по гр. д. № 13365/2016 г., СРС); (g) surveillance outside the relevant time-limit (see реш. № 8690 от 21.12.2017 г. по гр. д. № 6213/2017 г., СГС, upheld by реш. № 1536 от 01.06.2018 г. по в. гр. д. № 1509/2018 г., САС, upheld by реш. № 293 от 17.03.2020 г. по гр. д. № 3963/2018 г., ВКС, IV г. о.). (h) surveillance for the purpose of tracing a fugitive, that not being among the situations envisaged under the 1997 Act (see реш. № 1360 от 12.01.2017 г. по гр. д. № 781/2015 г., РС-Перник, upheld by реш. № 173 от 23.06.2017 г. по в. гр. д. № 237/2017 г., ОС-Перник, upheld, with an increase of the award of damages, by реш. № 203 от 27.02.2019 г. по гр. д. № 5061/2017 г., ВКС, III г. о.). 140. In all those cases, the claimants had been notified by the National Bureau that they had been subjected to unlawful surveillance, and the courts had before them information from the Bureau, and in some cases also surveillance materials adduced as evidence in criminal proceedings against the people concerned. In its annual report for 2016, the Bureau said (at p. 25) that it had provided the civil courts with materials from its inspections pursuant to requests made by them in such cases. 141. In a March 2018 decision, the Sofia Court of Appeal held, among other things, that under the general rule of affirmanti incumbit probatio, in proceedings under section 2(1)(7) of the 1988 Act the burden was on claimants to show which authority had used special means of surveillance unlawfully with respect to them, and was thus a proper defendant to their claim (see опр. № 778 от 06.03.2018 г. по в. гр. д. № 1063/2018 г., САС, unclear whether final). 142. In a recent case in which the use of special means of surveillance was not apparent from the materials in the criminal proceedings against the claimant, the courts dismissed the claim under section 2(1)(7) of the 1988 Act as unproven, noting that it was for the claimant to make out her assertion that such means had been used with respect to her (see реш. oт 31.12.2019 г. по гр. д. 31075/2015 г., СРС, upheld by реш. № 260651 от 29.01.2021 г. по в. гр. д. № 6434/2020 г., СГС, appeal on points of law apparently pending). 143. In a June 2020 decision, the Burgas Regional Court held that a claim under section 2(1)(7) of the 1988 Act could be brought only if the use of special means of surveillance with respect to the claimant was apparent either from the materials adduced as evidence in a criminal case or from a notification by the National Bureau (see опр. № 1786 от 26.06.2020 г. по гр. д. № 1037/2020 г., ОС-Бургас, apparently final). 144. In an April 2021 judgment, the Sofia City Court held that since the National Bureau, when notifying the claimant, had not given an account of the content of the surveillance applications or the surveillance warrants, there was no basis on which to find that the use of special means of surveillance had been unlawful. The court hence dismissed the claim (see реш. № 262304 от 07.04.2021 г. по гр. д. № 8701/2019 г., СГС, unclear whether final). Criminal liability of officials for unlawful secret surveillance 145. By Article 284c of the Criminal Code, added in 2009, it is an offence for an official unlawfully to authorise or order the use of special means of surveillance, or use them, or store information acquired through them. There has so far been only one reported conviction under that provision (see paragraph 56 above). DISCLOSURE OF DOCUMENTS IN CIVIL PROCEEDINGS 146. Article 190 § 1 of the Code of Civil Procedure provides that a party may ask the court to order the opposing party to disclose a document held by it, if it explains to the court why that document is relevant for its case. If the opposing party fails to disclose the document, the court may draw adverse inferences (Article 190 § 2 read in conjunction with Article 161). The opposing party may refuse to disclose a document if (a) its contents relate to its private or family life, or (b) its disclosure would bring that party or its relatives into disrepute or trigger a criminal prosecution against them (Article 191 § 1). If those considerations apply only to a part of the document, the opposing party may be ordered to present an excerpt (Article 191 § 2). 147. Article 192 § 1 of the Code provides that a party may ask the court to order a third party to present a document in its possession. If that third party does not present the document without justification, it may be fined by the court, and is liable towards the party which has requested the document for any damage resulting from its non-presentation (Article 192 § 3). 148. According to a leading practical treatise on civil procedure, a party’s request for the disclosure of a document under Articles 190 or 192 must, as far as practicable, spell out its type, date, author and other distinguishing features. It is furthermore impermissible to require the opposing party or a third party to create, for the purposes of the proceedings, a document which does not already exist (see Граждански процесуален кодекс, Приложен коментар, ИК „Труд и право“, 2017 г., p. 318). 149. Article 186 of the same Code provides that a court hearing a civil case may request a public authority to provide official documents or give the party which intends to rely on those documents a judicial certificate which that party can present to the relevant public authority with a view to obtaining those documents. The relevant public authority is bound to either issue those documents or explain the reasons why it cannot do so. 150. It does not appear that there are any reported decisions under Articles 186, 190 or 192 of the Code of Civil Procedure in relation to cases under section 2(1)(7) of the 1988 Act (see paragraphs 136 to 144 above). RETENTION AND ACCESSING OF COMMUNICATIONS DATAGeneral evolution of the legal regime General evolution of the legal regime General evolution of the legal regime 151. The regime for retention and subsequent accessing of communications data for law-enforcement purposes was introduced when section 251 of the Electronic Communications Act 2007 came into force in May 2007, and when the Minister of Internal Affairs and the head of the State Agency for Information Technologies and Communications issued, based on a statutory delegation in section 251(2), Regulations no. 40 of 7 January 2008 “on the categories of data and the manner in which it is to be retained and made available by enterprises offering public communications networks or services for national-security purposes and the detection of offences”. 152. Those provisions were put in place to transpose the so-called Data Retention Directive (see paragraph 232 below) (paragraph 4 of the Regulations’ transitional and concluding provisions). 153. Regulation 5 of Regulations no. 40 of 2008 was quashed by the Supreme Administrative Court in December 2008 following a challenge by the fourth applicant, the Access to Information Foundation (see реш. № 13627 от 11.12.2008 г. на ВАС по адм. д. № 11799/2008 г., ВАС, петчл. с-в, ДВ, бр. 108/2008 г.). 154. With effect from March 2009, Parliament amended section 251 of the 2007 Act, removing the statutory delegation enabling the issuing of regulations pursuant to it. The status of Regulations no. 40 of 7 January 2008, which have not been formally repealed, is thus unclear. 155. In early 2010 Parliament added new sections 250a-250f, 251a, 261a-261b, 327(4)-(7), and 332a to the 2007 Act, and amended section 251. This was again done with a view to transposing the Data Retention Directive (paragraph 10 of the additional provisions of the February 2010 Act for the amendment of the 2007 Act). 156. Following a legal challenge brought by the Ombudsman of the Republic in April 2014, in the wake of the judgment of the Court of Justice of the European Union (“CJEU”) holding the Data Retention Directive invalid (see paragraph 233 below), in mid-March 2015 the Constitutional Court declared sections 250a-250f, 251 and 251a of the 2007 Act unconstitutional as a whole (see реш. № 2 от 12.03.2015 г. по к. д. № 8/2014 г., КС, обн., ДВ, бр. 23/2015 г.). 157. In reaction to that judgment, in late March 2015 Parliament added new sections 251b-251i to the 2007 Act, and a new Article 159a to the Code of Criminal Procedure. They have been amended several times since then. In 2016, a new section 251d 1 was added. 158. In March 2020, following the outbreak of the COVID-19 pandemic, Parliament amended sections 251b(2), 251c(2), 251d(5) and 251d 1 (1), (3) and (4) of the 2007 Act to make it possible to use retained location (cell ID) data to enforce quarantine and isolation measures for people who are ill with or are carriers of a number of contagious diseases, including COVID-19. 159. In November 2020 the Constitutional Court declared the amendment unconstitutional as a whole (see реш. № 15 от 17.11.2020 г. по к. д. № 4/2020 г., КС, обн., ДВ, бр. 101/2020 г.). It held, with reference to, among other things, the CJEU’s case-law in that domain (see paragraphs 233 and 240 to 243 below), that resorting to the general retention of location (cell ID) data for six months and the consequent possibility for the authorities to access it to enforce measures intended to prevent the spread of infectious diseases disproportionately interfered with the constitutional right to privacy. The regime as it stands at present 160. All legal provisions cited below are set out as they stood on 7 December 2021. Types of communications data subject to retention 161. All electronic communications service providers in Bulgaria must retain, for six months, the following types of communications data for all of their users: (a) data necessary to trace and identify the source of a communication; (b) data necessary to identify the destination of a communication; (c) data necessary to identify the date, time and duration of a communication; (d) data necessary to identify the type of a communication; (e) data necessary to identify the user’s communication equipment or what purports to be that equipment; and (f) the cell ID for mobile communication equipment (section 251b(1) of the 2007 Act). Section 251i defines in detail what each of those types of data consist of for fixed and mobile telephony, and Internet access, email and Internet telephony. Those provisions reproduce nearly verbatim the wording of Article 5 of the Data Retention Directive (see paragraph 232 below). Communications service providers which fail to comply with this data-retention obligation are liable to a pecuniary sanction ranging from BGN 3,000 to BGN 25,000 (section 327(4) of the 2007 Act). 162. According to the annual reports of the Commission for Protection of Personal Data (see paragraphs 198 to 203 below), the overall number of communications service providers in Bulgaria and the number of such providers reporting to the Commission about data retention each year since 2015 [16] was as follows: Year Overall number of communications service providers Communications service providers reporting to the Commission 2015 1,160 77 [17] 2016 1,143 104 2017 not specified 93 2018 not specified 117 2019 not specified 99 Purposes for which that data is retained 163. Such data is retained for (a) national-security purposes; (b) the prevention, detection or investigation of “serious” criminal offences [18] (including, following a January 2018 amendment, the prevention of “serious offences” of corruption by a special commission); (c) the tracing of people who have been finally sentenced to imprisonment with respect to a serious criminal offence or who have fallen or could fall in a situation which puts their life or health at risk; and (d) (this applies solely to cell ID) the carrying out of search-and-rescue operations with respect to people in distress (section 251b(2) of the 2007 Act and Article 159 § 2 of the Code of Criminal Procedure). Rules on the processing of the retained data by the communications service providers 164. The retained data must be processed and kept by the communications service providers in line with the rules on the protection of personal data (section 251b(4) of the 2007 Act). 165. Communications service providers must ensure that the retained data is: (a) of the same quality and subject to the same security and protection as the data on their networks; (b) subject to appropriate technical and organisational measures to protect it against accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure; (c) subject to appropriate technical and organisational measures to ensure that it can be accessed by specially authorised personnel only; and (d) destroyed at the end of the period of retention, except as specifically provided for by law (section 261a(2) of the 2007 Act). Destruction of retained data which has not been accessed by the authorities 166. Communications service providers must destroy the retained data immediately after the expiry of the six-month time-limit for its retention, and send a record attesting that destruction to the Commission for Protection of Personal Data (see paragraphs 198 to 203 below) not later than the fifth day of the respective month (section 251g(1) of the 2007 Act). The Commission can control whether that duty has been complied with (see paragraph 204 (b) below). Authorisation procedure (a) Authorities entitled to seek access 167. Only a limited number of authorities may seek access to the retained data, within the spheres of their respective competencies. 168. Outside the framework of already pending criminal proceedings, such access may be sought only by: (a) the specialised directorates and the territorial directorates and units of the State Agency for National Security; (b) various directorates of the Ministry of Internal Affairs (national police, fight against organised crime, border police, internal affairs, and the regional directorates); (c) the military-intelligence and military-police services attached to the Minister of Defence; (d) the Intelligence Agency; (e) the specialised anti-corruption directorate; [19] and (f) (as regards cell ID data needed for search-and-rescue operations – see paragraphs 161 (f) and 163 (d) above) the Fire Safety and Civil Protection Directorate of the Ministry of Internal Affairs, including its territorial units (section 251c(1) and (2) of the 2007 Act). If access is sought by a foreign authority, the request must be made through a central or specialised directorate of the State Agency for National Security or the Ministry of Internal Affairs (section 251h(2)). 169. In the course of criminal proceedings, access may sought by the court hearing the case (if it is already at the trial or appeal stages) or by the public prosecutor in charge of supervising the pre-trial investigation (Article 159a § 1 of the Code of Criminal Procedure). 170. According to the annual reports of the parliamentary committee overseeing the system (see paragraphs 205 to 211 below), the number of access applications per year in 2015-19 was as follows: Year Access applicationsoutside criminal proceedings Access applicationsby public prosecutors 2015 12,948 13,354 2016 15,805 24,758 2017 13,233 25,252 2018 10,603 22,563 2019 13,108 18,883 (b) Content of the access application 171. Access applications made outside the context of pending criminal proceedings must be reasoned and set out (a) the legal grounds and the purpose for which access is being sought; (b) the number of the case file in connection with which access is being sought; (c) if available, information about the user(s) whose data is being sought; (d) the data which must be provided; (e) the period of time with respect to which data is being sought, which must be “reasonable” and “necessary to attain the purpose” for which the access application is being made; (f) a full account of the circumstances which show that the data is needed for a relevant purpose; and (g) the official to whom the data must be made available (section 251c(3) of the 2007 Act). 172. Access applications made by a public prosecutor in the course of criminal proceedings must likewise be reasoned and set out (a) information about the alleged offence in connection with which access is being sought; (b) a description of the circumstances underlying the access application; (c) information about the user(s) whose data is being sought; (d) the “reasonable” period of time with respect to which data is being sought; and (e) the investigating authority to which the data must be made available (Article 159a § 3 of the Code of Criminal Procedure). (c) Authorities competent to issue access warrants 173. Outside the framework of already pending criminal proceedings, the warrant may be issued by the president of the district court which is territorially competent with respect to the place where the requesting authority is located, or a judge to whom its president has delegated that power (section 251d(1) of the 2007 Act). 174. If the access application concerns alleged terrorist offences (including preparatory ones), the warrant may be issued only by the President of the Specialised Criminal Court or a judge to whom he or she has delegated that power (section 251d(2) of the 2007 Act). 175. If the access application has been made at the request of a foreign authority, the warrant must be issued by the Sofia City Court or a judge to whom he or she had delegated that power (section 251h(2) of the 2007 Act). 176. Special rules govern the accessing of retained communications data relating to district court presidents or their relatives, or the President of the Specialised Criminal Court or his or her relatives (except if access to the data is being sought for a search-and-rescue operation): in those cases the warrant may be issued by, respectively, the respective regional court president or the President of the Specialised Criminal Court of Appeal (section 251d(4) of the 2007 Act). 177. If the access application has been made by a public prosecutor in the course of criminal proceedings, the warrant may be issued by a judge of the competent first-instance court (Article 159a § 1 of the Code of Criminal Procedure). (d) Manner of examination of access applications 178. When access is sought in connection with an alleged terrorist offence, the access warrant must be issued within twenty-four hours of the receipt of the access application (section 251d(3) of the 2007 Act). Neither the 2007 Act nor Article 159a of the Code of Criminal Procedure lay down express time-limits for the examination of access applications in other cases. 179. When relating to an access application made outside the framework of already pending criminal proceedings, the decision to issue a warrant must be reasoned, and the warrant must set out (a) the data which must be provided; (b) the period of time with respect to which data is to be provided, which must be “reasonable” and “necessary to attain the purpose” for which the access application has been made; and (c) the official to whom the data is to be made available (section 251d(6) of the 2007 Act). 180. When relating to an access application made in the course of criminal proceedings, the decision to issue a warrant must likewise be reasoned and set out (a) the data which must be provided; (b) the period of time with respect to which data is to be provided, which must be “reasonable”; and (c) the investigating authority to which the data is to be made available (Article 159a §§ 1 and 4 of the Code of Criminal Procedure). 181. All district courts, the Specialised Criminal Court and the Sofia City Court must record their decisions to allow or refuse access applications in non-public registers (sections 251d(7) and 251h(2) in fine of the 2007 Act). 182. According to the annual reports of the parliamentary committee overseeing the system (see paragraph 205 to 211 below), the judicial decisions to allow or refuse access application each year in 2015-19 were as follows: Year Access warrants issued Access applications refused 2015 25,303 [20] 2,911 2016 39,990 3,479 2017 38,492 2,762 2018 33,835 2,287 2019 29,325 2,666 (e) Retrospective authorisation in urgent cases 183. In cases of an immediate danger of the commission of a terrorist offence (including a preparatory one), access may be provided without a prior judicial warrant (section 251d 1 (1) of the 2007 Act). In those cases, the (direct) access request must set out (a) the legal ground for access; (b) the data which is to be made available; (c) the period of time with respect to which data is to be provided, which must be “reasonable”; and (d) the official to whom the data is to be made available (section 251d 1 (2)). 184. The head of the requesting authority must then immediately inform the relevant judge of the access, send him or her the access request, and explain the reasons why direct access had been necessary. Those reasons must include a full account of the circumstances which caused the authority to think that a terrorist offence was imminent (section 251d 1 (3) of the 2007 Act). 185. If the judge does not approve the access request within twenty-four hours, any data made available pursuant to the direct access request must be destroyed by the authority which has received them, and the communications service provider must be informed of that (section 251d 1 (4) of the 2007 Act). If the judge approves the access request, that validates all steps already taken with respect to it (section 251d 1 (5)). 186. The annual report of the parliamentary committee overseeing the system (see paragraphs 205 to 211 below) for 2019 – the only one which mentioned the point – said (at p. 11), that during that year the courts had approved 317 such direct access requests made in urgent cases. Procedure for accessing retained data 187. Communications service providers must arrange for the possibility to receive access requests, including direct access requests, round the clock (section 251e(1) of the 2007 Act). They must keep the relevant authorities apprised of their access correspondents (section 251e(1)). Failure to do so may result in a pecuniary sanction ranging from BGN 2,000 to BGN 12,000 (section 327(5)). 188. In regular cases, the communications service providers must provide the data as quickly as possible and in any event within seventy-two hours of receiving the access request. However, the Minister of Internal Affairs or the head of the State Agency for National Security, or their duly authorised deputies, may fix a shorter time-limit in a given case. In cases concerning alleged terrorist offences, the data must be provided immediately (section 251f(2) of the 2007 Act). Failure to do so may result in a pecuniary sanction ranging from BGN 10,000 to BGN 25,000, and from BGN 15,000 to BGN 50,000 in repeat cases (section 327(6) and (7)). When it comes to search-and-rescue operations, access must be provided immediately and in any event not later than two hours of receipt of the access request; if the life or health of the people concerned are at serious risk, the Minister of Internal Affairs or a duly authorised official may fix a shorter time (section 251f(3)). 189. All access requests must be recorded by the communications service providers in a special non-public register (section 251f(1) in fine of the 2007 Act). Only duly authorised employees may deal with access requests (section 251f(4)). The document setting out the data sought by the authorities must be signed by the head of the communications service provider or a duly authorised employee, likewise recorded in a special register, and sent directly to the designated official (section 251f(5)). 190. If technically feasible, all those exchanges of documents between the authorities and communications service providers must be done electronically (section 251f(6) of the 2007 Act). 191. If requested by the relevant authority and authorised by the relevant judge, retained data which has been accessed by it may be kept by the communications service provider for a maximum of three months of the date on which it was accessed (section 251f(7) of the 2007 Act). 192. According to the annual reports of the Commission for Protection of Personal Data (see paragraphs 198 to 203 below), the number of instances in which retained communications data had been provided to the authorities and the number of access requests not met each year since 2010 [21] was as follows: Year Instances of access provided Access requests not met 2010 38,861 920 2011 74,296 1,376 2012 91,159 1,083 2013 96,652 1,606 2014 107,769 705 2015 70,543 2,783 2016 64,959 546 2017 65,073 347 2018 56,527 416 2019 47,553 291 Storage of retained data accessed by the authorities 193. Neither the 2007 Act nor the Code of Criminal Procedure contain provisions spelling out how retained communications data accessed by the authorities is to be stored by them. A perusal of judicial decisions mentioning such data suggests that when used in the course of criminal proceedings, it is kept in the case file of the respective case (see, for instance, прис. № 4 от 19.01.2018 г. по н. о. х. д. № 234/2017 г., ОС-Хасково; прис. № 32 от 10.09.2019 г. по н. о. х. д. № 475/2018 г., ОС-Стара Загора; and прис. № 34 от 11.12.2019 г. по н. о. х. д. № 650/2019 г., ОС-София). Neither the Rules on the administrative services of the courts, issued by the Supreme Judicial Council in 2017, nor the Rules on the administrative services of the prosecutor’s offices, issued by the Supreme Judicial Council in 2013, which govern the storage of case files by, respectively, the courts and the prosecuting authorities, contain special rules on the storage of communications data featuring in a case file. Destruction of retained data accessed by the authorities 194. If they do not use it to open criminal proceedings, the authorities must destroy the communications data which they have accessed within three months of receiving it. The destruction is to be done by a three-member commission appointed by the head of the respective authority. The commission must draw up a record attesting the destruction and send it immediately to the judge who has issued the access warrant. That record must be registered in the warrants register kept by the respective court (see paragraph 181 above) (section 251g(2) of the 2007 Act). 195. If the competent judge does not validate retrospectively access to the retained data accessed by the authorities without a prior warrant under the urgent procedure (see paragraphs 183 to 185 above), that data must be destroyed immediately in the same way (section 251g(3) of the 2007 Act). 196. Communications data accessed in the course of criminal proceedings which turns out to be irrelevant or unhelpful for establishing the facts of the case must likewise be destroyed. That is done on the basis of an order of the judge who has issued the access warrant (made on a proposal by the public prosecutor in charge of the case), in accordance with rules laid down by the Chief Prosecutor (those rules do not appear to be publicly available). Within seven days of the destruction, the communications service providers and the public prosecutor in charge of the case must send records attesting the destruction to the judge who has issued the access warrant (Article 159a § 6 of the Code of Criminal Procedure). Authorities supervising the retention of and the access to communications data (a) Judges who have issued the respective access warrants 197. As noted in paragraphs 194, 195 and 196 in fine above, the judge who has issued the access warrant must be informed of the destruction of any irrelevant or unhelpful communications data by the relevant law ‑ enforcement authority. (b) Commission for Protection of Personal Data 198. The Commission for Protection of Personal Data oversees the retention of communications data for law-enforcement purposes by the communications service providers (section 261a(1) and (2) of the 2007 Act). By section 262 of the 2007 Act, as amended in February 2019, the Commission’s supervision of the processing of personal data caused by the retention and accessing of communications data must be carried out in line with the requirements of the General Data Protection Regulation (“GDPR” – see paragraphs 234 to 237 below) and the Protection of Personal Data Act 2002 (see paragraphs 218 and 225 below). 199. The same Commission is also generally competent to oversee the processing of personal data by non-judicial authorities for law-enforcement purposes (see paragraph 225 below). (i) Manner of election and term of office of the Commission’s members 200. The Commission, which is an “independent supervisory authority”, consists of a chairperson and four members, all elected by Parliament following a proposal by the Council of Ministers for a term of five years, renewable once (sections 6(1) and 7(1) and (2) of the Protection of Personal Data Act 2002). They must have university education in computer science, information technology or law (section 8(1)(1)). The chairperson must be a qualified lawyer (section 8(3)). Parliament may terminate their term of office prematurely only in a limited number of situations: criminal conviction, grave misconduct, incapacity to carry out their duties for more than six months, or duly established conflict of interests (section 8(4)(2)). (ii) Powers of the Commission under the 2007 Act (α) To obtain information 201. The Commission may request communications service providers to provide it with any information relevant to its mandate in that domain (section 261a(3)(1) of the 2007 Act). Communications service providers must also provide it annually with statistical information about (a) the number of cases in which the authorities have accessed retained communications data, (b) the time elapsed between the date on which the data were retained and the date on which the competent authority requested access to it, and (c) the number of cases in which access requests have been impossible to meet (section 261a(4)). The Commission must report that statistical information annually to Parliament and to the European Commission [22] (section 261a(5)). 202. The Commission may also check how communications service providers comply with their duties to communicate personal data breaches to users (see paragraph 214 below) (section 261d(2) of the 2007 Act), and inspect the technical and organisational measures taken by communications service providers for storing retained communications data (section 261d(3)). (β) To give instructions and recommendations 203. The Commission may give binding instructions, which must be complied with immediately (section 261a(3)(2) of the 2007 Act). Those instructions may in particular be on when and how communications service providers must communicate personal data breaches to affected persons (section 261d(1)). It may also recommend best practices on the level of security when storing retained communications data (section 261d(3) in fine ). (γ) To impose sanctions 204. The Commission may sanction communications service providers who have not complied with their duties to (a) communicate a personal data breach to the persons affected by it (see paragraph 214 below) or (b) destroy retained communications data within the statutory time-limit (see paragraph 166 above) (sections 261d(2) in fine and 323a of the 2007 Act). (c) Parliamentary committee 205. The same standing parliamentary committee which is in charge of overseeing secret surveillance – the Parliamentary Committee for Control of the Security Services, of the Application and Use of Special Means of Surveillance, and of Access to the Data under the Electronic Communications Act (see paragraph 125 above) – is also tasked with overseeing the retention and accessing of communications data. It oversees not only communications service providers but also the authorities entitled to access the data and the procedures whereby they seek and obtain access to it, and must ensure that individual rights and freedoms are protected against unlawful access (section 261b(1) of the 2007 Act, and Rule 18 §§ 1(4)(b) and 2(2) of the 2017-21 Rules of the National Assembly). The Committee must report each year about any inspections which it has carried out (section 261b(2)(4)). (i) Manner of election of the Committee’s members 206. This is set out in paragraph 126 above. (ii) Powers of the Committee under the 2007 Act (α) To obtain information 207. The Committee may: (a) request communications service providers, the authorities entitled to access retained data (see paragraphs 168 and 169 above) and the Commission for Protection of Personal Data to provide it with any information relevant to its mandate; (b) check the way in which retained data, access applications and access warrants are being kept, and the way in which retained data is being destroyed; and (c) access the premises of relevant authorities or communications service providers (section 261b(2)(1) to (2)(3) of the 2007 Act). The Ministry of Internal Affairs, the State Agency for National Security, the Intelligence Agency and the Chief Prosecutor must provide the Committee statistics about the annual number of access requests, access warrants, and instances of accessing and destruction of data (section 261b(3)). 208. In its annual report for 2017, the Committee noted that experts employed by it had carried out 302 inspections in courts and law ‑ enforcement authorities. Those inspections had revealed (a) diverging practices in the courts in relation to access requests, and (b) a failure on the part of the public prosecutors in charge of the respective criminal cases to comply with their duty under Article 159a § 6 of the Code of Criminal Procedure to propose to the competent judges to order the destruction of accessed communications data which had turned out to be irrelevant or unhelpful (see paragraph 196 above). The report also noted various instances in which the legal requirements for access had not been complied with. 209. In its annual report for 2018, the Committee noted that experts employed by it had carried out 229 inspections, and had again seen various diverging practices, as well as failures by the prosecuting authorities to destroy irrelevant communications data on the basis that that data might turn out to be helpful at a later stage of the investigation. The report again noted various instances in which the legal requirements for access had not been complied with. 210. In its annual report for 2019, the Committee noted that experts employed by it had carried out 136 inspections, and had once again seen various diverging practices, as well as failures by the prosecuting authorities to propose to the competent judges to order the destruction of irrelevant communications data (see paragraph 208 (b) above). The report again noted various instances in which the legal requirements for access had not been complied with. (β) To give instructions 211. The Committee may give instructions designed to improve the procedures for processing and destruction of the retained data (section 261b(2)(4) in fine of the 2007 Act). (iii) To bring irregularities to the attention of the competent authorities 212. If the Committee finds that retained communications data has been used, stored or destroyed unlawfully, it must bring the matter to the attention of the prosecuting authorities, and inform the heads of the relevant access-requesting authorities and communications service providers. Those heads must report back to the Committee on the steps taken to remedy those irregularities (section 261b(4) of the 2007 Act). Notification arrangements (a) In cases of unlawful access or attempted access 213. If the Committee finds that someone’s retained communications data has been accessed or sought to be accessed unlawfully, it must notify that individual (section 261b(5) of the 2007 Act). Such notification is not required if it would risk defeating the purpose(s) under section 251b(2) of the 2007 Act for which the data has been accessed or sought to be accessed (see paragraph 163 above). (b) In cases of a personal data breach 214. If a communications service provider becomes aware of a personal data breach, it must inform the Commission for Protection of Personal Data within three days (section 261c(1) the 2007 Act). If the breach can affect negatively the personal data or the private life of a user or another person, the provider must communicate it to them (section 261c(2)), but may omit doing so if it satisfies the Commission that it has put in place appropriate technical and organisational protection measures in relation to the personal data affected by the breach – such as technical measures making the data unintelligible to anyone not authorised to access it (section 261c(3)). If the provider has not itself communicated the breach, the Commission, having reviewed its potential negative consequences, may nevertheless require the provider to communicate the breach to the affected persons (section 261c(4)). Section 261c(5) sets out the minimum content of the communication. RELEVANT DATA PROTECTION PROVISIONS 215. All legal provisions cited below, which came into force in February 2019, are set out as they stood on 7 December 2021. Field of application 216. The provisions of the Protection of Personal Data Act 2002 apply only to individuals (natural persons), regardless of whether they concern the processing of personal data falling under the GDPR (see paragraph 234 below) or the processing of such data by the authorities for law-enforcement purposes (section 1(1) and (2)). They do not apply to processing of such data for defence or national security purposes either, unless expressly provided elsewhere (section 1(5)). On the processing of personal data by private personsLimitations on the rights of data subjects Limitations on the rights of data subjects Limitations on the rights of data subjects 217. A controller or processor of personal data may restrict, wholly or in part, the access, rectification, erasure and other rights of the data subject, as laid down in Articles 12 to 22 of the GDPR, or eschew the duty under Article 34 of the GDPR to communicate a personal data breach to the data subject, if the exercise of those rights or the performance of that duty would create a risk for, among others, (a) national security, (b) public security, or (c) the prevention, investigation, detection or prosecution of criminal offences (section 37a(1) of the Protection of Personal Data Act 2002, which echoes Article 23 § 1 of the GDPR – see paragraph 234 below). Remedies 218. Data subjects considering that their rights under the GDPR or the 2002 Act have been breached may complain to the Commission for Protection of Personal Data, and seek judicial review of its decision (section 38(1) and (7) of the 2002 Act, which echoes Article 77 § 1 and Article 78 §§ 1 and 2 of the GDPR – see paragraph 236 below). Data subjects may also seek judicial review of the actions or decisions of the data controller or processor, or damages from them, in case they have processed their personal data unlawfully (section 39(1) and (2) of the 2002 Act, which echoes Articles 79 § 1 and 82 § 1 of the GDPR – see paragraphs 237 and 238 below). On the processing of personal data by the competent authoritiesfor law-enforcement purposesConditions on which such processing is lawful Conditions on which such processing is lawful Conditions on which such processing is lawful 219. Processing of personal data by the competent law-enforcement authorities is lawful if it is (a) necessary for the prevention, investigation, detection or prosecution of a criminal offence and is (b) based on a statute or statutory instrument or on a provision of European Union law specifying the purposes of the processing and the categories of personal data to be processed (section 49 of the 2002 Act, transposing Article 8 of Directive (EU) 2016/680 – see paragraph 239 below). Such data must, among other things, (a) be processed in a manner ensuring its appropriate security, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, (b) not be processed in a manner incompatible with the explicit legitimate purposes for which it has been collected, and (c) kept in a form which permits the identification of data subjects for no longer than is necessary for the purposes for which they are processed (section 45(1)(2), (1)(5) and (1)(6), transposing Article 4 § 1 (b), (e) and (f) of the Directive). Possible limitations on the rights of data subjects 220. A data controller may delay or refuse (wholly or in part) to provide the data subject with information about data processing for law-enforcement purposes and the data subject’s rights in relation to that processing if that is necessary to, among other things, (a) avoid obstructing official or legal inquiries, investigations or procedures; (b) avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences; (c) protect public security; or (d) protect national security (section 54(3) of the 2002 Act, transposing Article 13 § 3 of Directive (EU) 2016/680). When the obstacle ceases to exist, the data controller must provide the requested information within two months (section 54(4) of the 2002 Act). 221. The data subject’s rights of access to, rectification, erasure and restriction of the processing of his or her personal data may be limited on the same grounds (sections 55(3) and 56(6) of the 2002 Act, transposing Articles 14, 15 §§ 1 and 2, and 16 § 4 of Directive (EU) 2016/680). When the obstacle ceases to exist, the data controller must provide the requested information within two months (sections 55(3) in fine and 56(6) in fine read in conjunction with section 54(4) of the 2002 Act). In any event, the controller must restrict the processing of personal data rather than altogether erase it if that data has to be maintained for the purposes of evidence (section 56(4)(2), transposing Article 16 § 3 (b) of the Directive). 222. If access to personal data is restricted under those provisions, the controller must inform the data subject of the restriction and the reasons for it within two months, but may omit doing so if that would defeat the purpose of the restriction (section 55(4) of the 2002 Act, transposing Article 15 § 3 of Directive (EU) 2016/680). In that case, the controller must document the factual or legal reasons on which that decision is based, and make those reasons available to the supervisory authorities (the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council (section 55(5), transposing Article 15 § 4 of the Directive). 223. If rectification, erasure or restriction of the processing of personal data is refused under the above provisions, the controller must inform the data subject of the restriction and the reasons for it within two months, but may omit doing so if that would defeat the purpose of the refusal. In that case, the data controller must provide the reasons for the refusal to the data subject within two months after the obstacle ceases to exist (section 56(7) of the 2002 Act, transposing Article 16 § 4 of Directive (EU) 2016/680). 224. In all those cases of limitation on the rights of data subjects, they may exercise their rights indirectly, through the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council (depending on whether the data are being processed by a judicial or a non-judicial authority – see paragraph 225 below). If they receive such a complaint, those authorities must check whether the limitation was lawful (section 57(1) of the 2002 Act, transposing Article 17 § 1 of Directive (EU) 2016/680). They must inform the data subject at least that all necessary checks have taken place, and of his or her right to seek a judicial remedy (section 57(2), transposing Article 17 § 3 of the Directive). Supervisory authorities 225. The Commission for Protection of Personal Data supervises the processing of personal data for law-enforcement purposes by all authorities except the courts and the prosecuting and investigating authorities. The processing of personal data for law-enforcement purposes by the courts and the prosecuting and investigating authorities is supervised by the Inspectorate attached to the Supreme Judicial Council (section 78 of the 2002 Act, transposing Article 41 of Directive (EU) 2016/680). 226. In carrying out that supervision, the Commission and the Inspectorate must, among other things, (a) examine complaints by data subjects, (b) check the lawfulness of the data processing in cases in which the data subject’s rights have been restricted (see paragraphs 220 to 223 above), and (c) inform the data subject within three months of the outcome of the verification or of the reasons why one has not been carried out (section 79(1)(5) and (1)(6) of the 2002 Act, transposing Article 46 § 1 (f) and (g) of Directive (EU) 2016/680). Remedies 227. Data subjects are entitled to the same remedies for alleged breaches of their rights by law-enforcement authorities as they are for alleged breaches of their rights by private persons (see paragraph 218 above) (section 82(1) of the 2002 Act, transposing Articles 52 § 1 and 54 of Directive (EU) 2016/680). RELEVANT DECISIONS OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE 228. The Committee of Ministers of the Council of Europe has so far examined the execution of the Court’s judgment in Association for European Integration and Human Rights and Ekimdzhiev (cited above) in March 2013, June 2017 and June 2019. The Committee is supervising that execution under its enhanced procedure, and the proceedings before it are still pending. 229. In its three decisions adopted so far in the course of that supervision ( CM/Del/Dec(2013)1164/8; CM/Del/Dec(2017)1288/H46-7; and CM/Del/ Dec(2019)1348/H46-5 ), the Committee noted the improvements resulting from the legislative reforms undertaken by the Bulgarian authorities in that domain, but also highlighted, inter alia, the following (outstanding) points of concern or uncertainty in relation to the general measures required to execute that judgment: (a) the lack of clarity about whether surveillance could be used to protect national security if those to be placed under surveillance were not suspected of a criminal offence; (b) the practical capacity of the courts receiving a high volume of surveillance applications – in particular the Specialised Criminal Court (see the table under paragraph 49 above) – to deal with those properly; (c) the maximum duration of the initial authorisation of surveillance on national-security grounds (two years – see paragraph 79 (b) above); (d) the lack of sufficient publicly available details about the procedures for screening and destroying information obtained through surveillance, and preserving its confidentiality and integrity (see paragraphs 87 to 99 above); (e) the qualifications of the members of the National Bureau and their independence with respect to the authorities which they are tasked with overseeing (see paragraphs 109 and 112 in fine above); the possibility for the Bureau to access all materials which it needs to carry out its tasks, including the materials on which surveillance applications are based (see paragraphs 118 and 119 above); and the competence of the Bureau to notify legal persons – as opposed to individuals only – of unlawful surveillance (see paragraph 130 above); and (f) the fact-finding capabilities of the civil courts in proceedings under section 2(1)(7) of the 1988 Act in situations in which the claimants have not been notified (or have learned otherwise) that they have been subjected to surveillance (see paragraphs 140 to 144 above), and the lack of certainty about the courts’ powers to order the destruction of surveillance materials. RELEVANT EUROPEAN UNION LAW E-PRIVACY DIRECTIVE 230. By Article 15 § 1 of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (“E-Privacy Directive”), Member States may adopt legislative measures providing for the retention of communications data for a limited period, if that is justified by the need to “safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system”. 231. By Article 15 § 2 of the same Directive, read in conjunction with Article 94 § 2 of the GDPR, all provisions of the GDPR on judicial remedies relating to the processing of personal data apply with regard to national provisions adopted pursuant to the E-Privacy Directive. DATA RETENTION DIRECTIVE 232. Article 3 read in conjunction with Article 5 and Article 6 of Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks (“Data Retention Directive”) required Member States to adopt measures to ensure that certain categories of communications data generated or processed by providers of (a) publicly available electronic communications services or of (b) public communications networks within their jurisdiction were retained for periods ranging between six months and two years. 233. In a judgment of 8 April 2014, Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238) the CJEU held that Directive invalid as a whole, on the basis that it required a disproportionate interference with the rights to respect for private life and communications, protected under Article 7 of the Charter of Fundamental Rights of the European Union, and with the right to right to protection of personal data under Article 8 of the Charter. First, the Directive required the retention of all traffic data and applied to all means of electronic communication. Secondly, the Directive did not lay down substantive and procedural conditions governing access by the authorities to the retained data or to its subsequent use, and did not make such access dependent on a prior review by a court or by an independent administrative body whose decision could limit access to the data and its use to what was strictly necessary. Thirdly, the Directive required that all data be retained for a period of at least six months, without distinguishing between categories of data on the basis of its possible usefulness or the persons concerned. Lastly, the Directive did not set out sufficient safeguards for the effective protection of the retained data against the risk of abuse or against unlawful access and use. GENERAL DATA PROTECTION REGULATION 234. Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation” – “GDPR”) applies to “natural persons”, and does not cover the processing of personal data which concerns legal persons (recital 14). By its Article 23 § 1, Member State legislation may restrict the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34 “when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard”, among other things, (a) national security, (b) public security, and (c) the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. 235. If relevant, any such legislation must, among other things, provide for the right of data subjects to be informed about the restriction, unless that may be prejudicial to its purpose (Article 23 § 2 (h) of the GDPR). 236. Each data subject is entitled to lodge a complaint with a supervisory authority if he or she “considers that the processing of personal data relating to him or her infringes [the GDPR]” (Article 77 § 1 of the GDPR). 237. Each data subject is also entitled, in the same circumstances, to an effective judicial remedy (Article 79 § 1 of the GDPR). 238. Any person who has suffered material or non-material damage as a result of an infringement of the GDPR is entitled to compensation from the controller or processor (Article 82 § 1 of the GDPR). Article 82 §§ 2 to 4 govern the modalities under which such compensation may be sought. LAW-ENFORCEMENT DIRECTIVE 239. Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data governs the processing of the personal data of “natural persons” by the competent authorities for the purposes of “the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security” (Articles 1 § 1 and 2 § 1). It had to be transposed by May 2018 (Article 63 § 1). Bulgaria did so, by way of an amendment to the 2002 Act, in March 2019 (see paragraphs 219 to 227 above). CJEU CASE-LAW ON ARTICLE 15 § 1 OF THE E-PRIVACY DIRECTIVE 240. In a judgment of 21 December 2016 ( Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970), given pursuant to preliminary references by the Administrative Court of Appeal of Stockholm, Sweden, and the Court of Appeal of England and Wales, the CJEU held that national legislation providing for the general retention of all traffic and location data for the purpose of fighting crime was impermissible under Article 15 § 1 of the E-Privacy Directive (see paragraph 230 above). Article 15 § 1 also precluded legislation permitting the authorities to access retained data if, so far as relevant for the purposes of the present case, (a) the objective was not restricted to fighting serious crime, and (b) such access was not subject to prior review by a court or an independent authority. The CJEU based those conclusions on, among other things, the E ‑ Privacy Directive’s overall structure, including the general principle of confidentiality of communications laid down by it, and the requirement of strict necessity under European Union law for any limitations on the protection of personal data. Lastly, the CJEU declined to answer a question about whether the protection conferred by Articles 7 and 8 of the Charter, as construed by it, was wider than that under Article 8 of the Convention. It noted, among other things, that European Union law could give more extensive protection than the Convention, and that Article 8 of the Charter concerned a right (the protection of personal data) which had no equivalent in the Convention. 241. In a judgment of 2 October 2018 ( Ministerio Fiscal, C-207/16, EU:C:2018:788), given pursuant to a preliminary reference by the Provincial Court of Tarragona, Spain, the CJEU held that the interference entailed by access to retained names and addresses to identify the owners of SIM cards activated with a stolen mobile telephone was not sufficiently serious, and was thus permissible under Article 15 § 1 of the E-Privacy Directive even if not justified by the need to fight “serious” crime. 242. In a judgment of 6 October 2020 ( La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791), given pursuant to preliminary references by the French Council of State and the Belgian Constitutional Court, the CJEU, among other things, confirmed its position in Tele2 Sverige and Watson and Others (see paragraph 240 above) that Article 15 § 1 of the E-Privacy Directive precluded the general retention of traffic and location data for the purpose of fighting serious crime, and held that this provision permitted solely a targeted retention of such data, limited on the basis of objective and non-discriminatory factors. By contrast, Article 15 § 1 did not preclude the general retention of (a) IP addresses assigned to the source of an Internet connection, and (b) data relating to the civil identity of users of communications systems. General retention of traffic and location data – for a (renewable) period limited to what was strictly necessary – was, however, permissible if a State was facing a genuine and serious national-security threat which was present or foreseeable. But the decision citing such a threat to require general retention had to be subject to effective review, either by a court or by an independent administrative body whose decision was binding. That review had to extend also to whether the conditions and safeguards which had to be laid down were observed. 243. In another judgment of 6 October 2020 ( Privacy International, C‑623/17, EU:C:2020:790), given pursuant to a preliminary reference by the United Kingdom’s Investigatory Powers Tribunal, the CJEU held, among other things, that Article 15 § 1 of the E-Privacy Directive precluded legislation enabling an authority to require communications service providers to carry out a general transmission of traffic and location data to the security and intelligence agencies for the purpose of safeguarding national security. 244. In a judgment of 2 March 2021 ( Prokuratuur, C‑746/18, EU:C:2021:152 ), given pursuant to a preliminary reference by the Supreme Court of Estonia, the CJEU reiterated that Article 15 § 1 of the E-Privacy Directive permitted access to retained traffic or location data for the purpose of fighting crime only when it came to serious crime or serious threats to public security, regardless of the length of the period in respect of which access was sought and the quantity or nature of the data available in respect of that period. The CJEU went on to hold that the power to examine access requests could not be given to a prosecutor’s office, since its tasks of directing pretrial proceedings and prosecuting affected its independence vis-à-vis the parties to the criminal proceedings. 245. Three preliminary references concerning the compatibility of the German and Irish laws requiring the general retention of communications data with Article 15 § 1 of the E-Privacy Directive, made respectively by the German Federal Administrative Court in October 2019 and by the Supreme Court of Ireland in March 2020 ( SpaceNet, C-793/19; Telekom Deutschland, C-794/19; and Commissioner of the Garda Síochána and Others, no. C-140/20) are still pending. THE LAW SECRET SURVEILLANCE 246. The applicants complained that the system of secret surveillance in Bulgaria did not meet the requirements of Article 8 of the Convention, and that they did not have effective remedies in that respect, in breach of Article 13 of the Convention. 247. In the light of the Court’s case-law (see Roman Zakharov v. Russia [GC], no. 47143/06, § 307, ECHR 2015), the complaint falls to be examined solely under Article 8 of the Convention, which provides, so far as relevant: “1. Everyone has the right to respect for his private ... 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.” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions (a) Victim status of the applicants (i) The Government 248. The Government submitted that the applicants could not claim to be victims of a violation of their right to respect for their private life or correspondence. That was because under Bulgarian law only people suspected of serious criminal offences could be placed under surveillance, even when national security was at stake. Nothing suggested that any of applicants fell into that category, and that possibility was altogether inconceivable for the two applicant organisations, since in Bulgaria legal persons could not bear criminal liability. 249. Moreover, none of the applicants, who had the requisite expertise, had asked the National Bureau whether special means of surveillance had been used with respect to them. Nor had the two individual applicants tried to bring a claim under section 2(1)(7) of the 1988 Act, which could be brought even without a notification by the Bureau that special means of surveillance had been used against them. Both of those were effective remedies. It followed that the applicants had to show that they were at risk of surveillance owing to their personal situation – something which they had not done, and which was hard to believe, since nothing suggested that they could be suspected of any of the criminal offences justifying surveillance in Bulgaria. (ii) The applicants 250. The applicants replied that under the system of secret surveillance in Bulgaria the communications of anyone in the country could be intercepted, for several reasons. First, the laws permitting surveillance were couched in broad and vague terms, especially as regards the notion of national security. Secondly, many authorities could request surveillance, and the prosecuting authorities could uncontrollably open criminal proceedings against anyone. Thirdly, authorisation procedures were routinely flouted. Lastly, oversight by the National Bureau was ineffective in practice, which had made it pointless for the applicants to complain to it, especially since they could be subjected to surveillance indirectly, through the placing of contacts of theirs under surveillance. They had not brought a claim under section 2(1)(7) of the 1988 Act since it would have been ineffective in their situation, and was moreover not available to the two applicant organisations, since it was open only to individuals. It was thus unnecessary for any of them to show that they were at risk of being subjected to surveillance owing to their personal situation. (b) Exhaustion of domestic remedies 251. Based on the considerations summarised in paragraph 249 above, the Government further argued that the applicants had not exhausted domestic remedies. 252. The applicants replied that, for the reasons summarised in paragraph 250 above, the remedies suggested by the Government were not effective in their situation. The Court’s assessment (a) Whether the complaint is “substantially the same” 253. The first question which arises is whether the present complaint is “substantially the same” as that examined in Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007). The Court must deal with the point on its own initiative, since it marks out the limits of its competence (see Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, § 55, 15 June 2017). 254. The Court finds this not to be so, for the following reasons. 255. It is true that two of the applicants – Mr Ekimdzhiev and the Association for European Integration and Human Rights – are the same as in that earlier case, and that the gist of their grievance here, as formulated by them, is identical to the gist of the grievance examined there. The present complaint is, however, not based on the same facts. In that earlier case, the Court scrutinised the system of secret surveillance in Bulgaria as it stood in mid-2007, whereas in the case at hand it must scrutinise that system as it stands now (see paragraph 293 below). The relevant statutory and regulatory provisions in Bulgaria have evolved considerably since 2007, as has the manner of their application (see in particular paragraphs 13 to 16 above). All that is “relevant new information” within the meaning of Article 35 § 2 (b) of the Convention (see, mutatis mutandis, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 64-65, ECHR 2009, and Ivanţoc and Others v. Moldova and Russia, no. 23687/05, § 93, 15 November 2011). Admittedly, that expression must be construed to mean relevant new factual information (see Harkins, cited above, § 50). But in cases such as the one at hand, where the complaint is based on the state of the domestic law rather than on its application in a specific instance, that domestic law and the way it is applied in general is the main fact under examination. (b) Whether the Court is prevented from examining the complaint by Article 46 of the Convention 256. The second question which arises is whether the Court is prevented from examining the complaint by Article 46 of the Convention. That point, which goes to the Court’s jurisdiction, must likewise be examined on its own initiative. It is closely linked with the issue examined in paragraphs 253 to 255 above. 257. The Committee of Ministers’ ongoing review of the Bulgarian laws and practices relating to secret surveillance in the exercise of its task of supervising the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraphs 228 and 229 above) is no bar to the admissibility of the complaint. The Court’s task in this case is not to assess whether the general measures taken by the Bulgarian authorities were sufficient to discharge their duty under Article 46 § 1 of the Convention to abide by that judgment; the Court has no jurisdiction to do so (see Ivanţoc and Others, cited above, § 91). Its task here is rather to examine whether the complaint that the system of secret surveillance in Bulgaria, as it stands now – granted, partly as a result of general measures taken to abide by Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 14 above) – falls short of the requirements of Article 8 of the Convention is admissible and well-founded. Although that examination may in practice overlap or even in parts coincide with the supervision carried out by the Committee of Ministers, that does not take the complaint outside the Court’s jurisdiction. The Committee of Ministers’ role in the execution of the Court’s judgments does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the earlier judgment and, as such, form the subject of a new application with which the Court may deal (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, § 62; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 33, ECHR 2015; and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 47 (b), 11 July 2017). In this context, “new issue” connotes the existence of “relevant new information” within the meaning of Article 35 § 2 (b) of the Convention (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), § 63; Ivanţoc and Others, § 85; and Moreira Ferreira, § 47 (d), all cited above). But, as noted in paragraph 255 above, such “relevant new information” is present in this case (compare, mutatis mutandis, with Mehemi v. France (no. 2), no. 53470/99, §§ 43-44, ECHR 2003-IV; Wasserman v. Russia (no. 2), no. 21071/05, §§ 34-37, 10 April 2008; Liu v. Russia (no. 2), no. 29157/09, §§ 62-67, 26 July 2011; Ivanţoc and Others, cited above, §§ 89-95; and V.D. v. Croatia (no. 2), no. 19421/15, §§ 49-54, 15 November 2018). 258. The Court therefore has jurisdiction to examine the complaint. (c) The applicants’ victim status and exhaustion of domestic remedies 259. The Government’s objections that the applicants cannot claim to be victims of a violation and that they have not exhausted domestic remedies are both so closely linked to the substance of the applicants’ complaint that they must be joined to its merits (see Roman Zakharov, cited above, § 150). (d) Conclusion about the admissibility of the complaint 260. The complaint is, moreover, not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible. MeritsThe applicants’ victim status and the existence of an interference The applicants’ victim status and the existence of an interference The applicants’ victim status and the existence of an interference (a) The parties’ submissions 261. The parties’ submissions on these points are summarised in paragraphs 248 to 250 above. (b) The Court’s assessment (i) General principles 262. The general principles on when applicants may claim that they are victims of an interference with their rights under Article 8 of the Convention owing to the mere existence of domestic laws or practices permitting secret surveillance were clarified in Roman Zakharov (cited above, § 171) and more recently reiterated in Centrum för rättvisa v. Sweden ([GC], no. 35252/08, § 167, 25 May 2021). (ii) Application of those principles (α) Scope of the relevant law 263. Under the terms of section 12 of the 1997 Act, special means of surveillance can be used with respect to, inter alia, (a) persons suspected of, or unwittingly used for, the preparation or commission of one or more of the serious offences listed in section 3(1) of the 1997 Act; (b) persons or objects related to national security; and (c) objects necessary to identify such persons (see paragraph 23 above). The wording of section 12 thus suggests that national security can be a standalone ground for resorting to secret surveillance; this also follows from section 4 (see paragraph 22 above). But even if it is accepted that, as asserted by the Government with reference to the wording of section 14 of the 1997 Act (see paragraph 22 above), under Bulgarian law national security cannot be a standalone ground for resorting to secret surveillance, it remains the case that theoretically any individual in the country can be suspected of being involved, wittingly or unwittingly, in the planning or commission of a relevant criminal offence, and thus be him- or herself subjected to surveillance. It is also readily apparent that, regardless of whether they have themselves been placed under surveillance, individuals – or legal persons – can have their communications intercepted indirectly, as a result of the surveillance of another individual falling in one of the categories laid down in section 12 of the 1997 Act. It follows that all four applicants, including the two applicant organisations, may possibly be affected by the contested legislation. It is true that some surveillance techniques, such as visual surveillance and tracking (see paragraph 11 above), cannot be applied to legal persons as such. But it appears that in many cases the surveillance warrants authorise the use of those techniques alongside other surveillance techniques, such as tapping, which can affect the communications of legal persons (see paragraphs 61 and 65 above). (β) Availability of an effective remedy 264. The next question is whether there exists in Bulgaria an effective remedy which can alleviate the suspicion among the general public that secret surveillance powers are being abused. 265. In 2009 Bulgaria put in place a dedicated remedy in respect of secret surveillance, in the form of a claim for damages under section 2(1)(7) of the 1988 Act (see paragraph 136 above). The Court has recognised that such a claim is an effective remedy for people who have already learned that they have been subjected to surveillance as a result of criminal proceedings, in cases when the surveillance has taken place after the entry into force of that provision (see Harizanov v. Bulgaria (dec.), no. 53626/14, §§ 94-99, 5 December 2017). 266. But that only concerns situations in which the surveillance has yielded information which has led to the production of evidentiary material later used – and hence disclosed – in criminal proceedings. Throughout the past decade, the instances of surveillance which have led to the production of such evidentiary material have ranged from about 24% to about 60% (see the table under paragraph 93 above). And it is far from certain that in all of those cases such evidentiary material has later led to the bringing of charges, and has thus been disclosed to the persons concerned in the context of criminal proceedings. 267. It appears that in all cases in which that has not happened, the only (lawful) way in which the people concerned can learn that they have been subjected to surveillance is a notification by the National Bureau. But the 1997 Act does not require that all such people be notified. Irrespective of whether it investigates on its own initiative or pursuant to a complaint by someone suspecting that he or she has been subjected to surveillance, the Bureau is only required to notify people subjected to surveillance unlawfully (as determined by it), and even then only if that notification would not defeat the purpose of the surveillance or reveal the technical or operational means whereby it has been carried out (see paragraph 130 above). In practice, the Bureau notifies few people, if any, each year, even in comparison to the number of complaints it receives (see the table under paragraph 135 above). It appears that in other cases it simply informs the people who have applied to it that they have not been subjected to unlawful surveillance, without specifying whether that means that (a) no surveillance has taken place, that (b) it has taken place but was lawful, or (c) that it was indeed unlawful but should not be revealed because doing so would defeat its purpose or reveal the technical or operational means whereby it has been carried out (see paragraph 131 above). In hypothesis (c), the wording of the Bureau’s notification, as transpiring from the three examples made available to the Court (see paragraph 131 above), would in fact be misleading since there has been unlawful surveillance but there are grounds to conceal that it has taken place. The recipients of such notifications have no means of challenging them and thus obtaining more information (see paragraph 133 above). 268. Moreover, contrary to what was asserted by the Government, it does not seem that proceedings for damages under section 2(1)(7) of the 1988 Act (see paragraph 136 above) are, as matters stand, available to people who have not been notified by the National Bureau that they have been subjected to surveillance or have learned about that surveillance as a result of criminal proceedings in which its results have been used. It is true that section 2(1)(7) does not by its terms elevate such notification into a condition for the admissibility of such claims. But although that provision has already been in effect for more than twelve years, no cases have been reported in which claims under it have been successfully brought blindly, in the absence of prior notification by the Bureau or of information about surveillance which has emerged in criminal proceedings (see paragraph 140 above). Indeed, the apparently limited fact-finding capabilities of the civil courts in proceedings under section 2(1)(7) have already been noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (f) above). 269. The manner in which the Bulgarian courts have applied the rules of evidence in such cases suggests that absence of a notification by the National Bureau or of information about surveillance which has emerged in criminal proceedings is likely to be an unsurmountable obstacle to pursuing such claims (see paragraphs 141, 142 and 144 above). That was recognised, even if indirectly, by the Supreme Court of Cassation, which held that the limitation period for bringing such a claim starts to run when the person concerned is notified by the Bureau, because without such notification that person has no means of vindicating his or her rights (see paragraph 138 (h) above). In a recent case, the Burgas Regional Court even expressly held that a claim under section 2(1)(7) of the 1988 Act could be brought only if the use of special means of surveillance with respect to the claimant was apparent either from the materials adduced as evidence in a criminal case or from a notification by the Bureau (see paragraph 143 above). 270. In the absence of reported decisions by the Bulgarian courts, it is not for this Court to say whether or how the rules of civil procedure in Bulgaria which govern the disclosure of documents by the opposing party, by a third party or by a public authority (see paragraphs 146 to 150 above) can be applied in such cases. It was for the Government to explain that point, and as far as possible support their explanations with concrete examples (see, mutatis mutandis, Roman Zakharov, cited above, § 295, and Mustafa Sezgin Tanrıkulu v. Turkey, no. 27473/06, §§ 28-29, 18 July 2017). It suffices to note that for twelve years there have apparently been no cases in which those procedural tools have been deployed to overcome the absence of a prior notification by the National Bureau or of information about surveillance which has emerged in criminal proceedings. 271. Another obstacle for those wishing to bring such a claim blindly is identifying the correct defendant, which must be done at the outset of the proceedings (see paragraph 138 (c) above), but may nevertheless be impossible in the absence of any information about which authority has requested the surveillance or has carried it out (see, mutatis mutandis, Ribcheva and Others v. Bulgaria, nos. 37801/16 and 2 others, § 149 in fine, 30 March 2021). 272. A further limitation of the remedy under section 2(1)(7) of the 1988 Act lies in the degree of scrutiny applied by the courts when hearing such claims. The Supreme Court of Cassation has held that when deciding such claims the courts cannot inquire whether the judges who have issued a surveillance warrant have correctly assessed the need to do so (see paragraph 138 (f) above). That means the courts may check for formal deficiencies but cannot delve into the most important issues – whether the surveillance whose lawfulness is being challenged before them was based on a reasonable suspicion and amounted to a proportionate interference with the claimant’s rights under Article 8 of the Convention. This limitation deprives this safeguard from much of its efficacy. 273. Lastly, as is apparent from the provision’s wording (see paragraph 136 above), such claims are not open to legal persons. 274. Owing to all of these limitations, the remedy provided by section 2(1)(7) of the 1988 Act cannot sufficiently dispel the public’s misgivings about the threat of abusive secret surveillance. 275. Nor can those misgivings be dispelled by other possible remedies. The Government did not argue, and there is no indication, that there have so far been any instances in which someone has been able to obtain the destruction of data obtained through surveillance in reliance on section 56(6) in fine of the 2002 Act, amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 221 above), to obtain redress by way of a complaint to the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council under section 57 of that Act (see paragraph 224 above), or to obtain redress by way of a judicial remedy under section 82(1) of the 2002 Act, both likewise added in 2019 (see paragraph 227 above). It is true that those provisions are novel, and that they are part of a branch of law which has only developed relatively recently. But in the absence of any information about the way in which they can operate with respect to data obtained by way of secret surveillance (contrast the circumstances in Tretter and Others v. Austria (dec.) [Committee], no. 3599/10, §§ 10-14 and 43-46, 29 September 2020), it is not for the Court to speculate on the point. Those remedies are, moreover, not available to legal persons (see paragraphs 216 and 239 above). (γ) Conclusion 276. In view of the above considerations, there is no need to check whether the applicants are at risk of having their communications intercepted owing to their personal situation (see, mutatis mutandis, Centrum för rättvisa, cited above, §§ 175-76). 277. It follows that an examination of the relevant laws and practices in the abstract is justified. It also follows that the Government’s objection that the applicants may not claim to be victims of a violation of Article 8 of the Convention allegedly caused by the mere existence of laws permitting secret surveillance, which was joined to the merits (see paragraph 259 above), must be rejected. Justification for the interference (a) The parties’ submissions (i) The applicants 278. The applicants submitted that the legislation governing secret surveillance, as applied in practice by the authorities, did not provide enough guarantees against the abusive surveillance of anyone in Bulgaria. 279. In their view, the notion of national security, as understood in Bulgaria, was too vague, and permitted even legitimate political activities by the opposition to be seen as sufficient grounds for surveillance. The maximum possible length of the initial authorisation in such cases – two years – rendered all other safeguards nugatory. The clause authorising surveillance without prior judicial authorisation in urgent cases was also particularly prone to abuse. The number of authorities which could request surveillance outside the framework of already pending criminal proceedings had increased throughout the years. For their part, the prosecuting authorities could obtain abusive and arbitrary surveillance in criminal proceedings by opening them without proper justification, which could not be controlled by the courts at the pre-trial stage or engage the personal liability of the public prosecutors doing so. The genuineness of the risk of such abuses had been illustrated by the publication in February 2020, on the initiative of the Chief Prosecutor, of intercepted conversations between the President of the Republic, who enjoyed full immunity from prosecution, and the commander of the Air Force. 280. Many of the safeguards surrounding the authorisation procedure were in practice not adhered to, as recorded in several reports and publications. The courts often issued surveillance warrants without properly checking whether it was justified to do so – a practice which had reached its highpoint in the warrant in relation to which the 2011-15 President of the Sofia City Court had been criminally convicted. Judicial oversight of the storage and destruction of surveillance materials was also ineffective. 281. Oversight by the National Bureau was likewise ineffective. Most of the Bureau’s current members had come from the security services and did not have proper legal qualifications. Owing to the requirement to undergo security vetting by the State Agency for National Security and keep their security clearance throughout their term of office, Bureau members could lose their posts as a result of steps taken by that Agency, which was one of the authorities which most often requested surveillance. That risk was not merely theoretical, as illustrated by the case of the Bureau’s first deputy chairperson. This had seriously affected the Bureau’s independence and had marginalised it, especially in the last few years. Several interviews and declarations of the Bureau’s first chairperson had highlighted the weakening of its role and of its supervision over the prosecuting authorities and the State Agency for National Security. Another issue had been the illegal curtailing of the possibility for the Bureau to access materials held by the prosecuting authorities. Lastly, the Bureau checked solely the surveillance’s formal legality, and only notified those concerned if they had been subjected to it unlawfully. That explained the small number of notifications made by the Bureau, which was insignificant if compared to the number of surveillance operations. 282. The dedicated remedy, a claim under section 2(1)(7) of the 1988 Act, was not available to legal persons, and, as illustrated by the courts’ case-law, only worked when the Bureau had notified those concerned of unlawful surveillance. In such proceedings, the courts could not obtain the primary materials and had to rely on information provided by the Bureau. (ii) The Government 283. The Government pointed out that most rules governing the use of special means of surveillance were contained in legislative enactments. Those enactments and all relevant regulations had been published. There were also internal rules on the procedures for storing and destroying materials obtained via surveillance and the resulting evidence. The National Bureau supervised whether those rules were in line with the relevant statutes and regulations. 284. The law furthermore laid down an exhaustive list of offences which could trigger surveillance. Although it also provided that it could be employed to protect national security, in the courts’ practice that was not a standalone ground to authorise surveillance; even when national security was at stake, this could be done only to prevent or investigate one of the offences listed in the law, which was a safeguard against abusive interpretations of the notion of national security. The law also specified the categories of persons who could be subjected to surveillance, as well as the grounds and conditions on which, and the purposes for which, surveillance could be authorised and carried out. 285. Surveillance was subject to prior judicial authorisation except in urgent cases – an exception to which the authorities resorted sparingly. Even in those cases, surveillance had to be validated retrospectively by a judge within twenty-four hours, and that judge could also assess whether it had been justified to resort to the urgent procedure. To obtain a warrant, the relevant authority had to make a reasoned application, and when examining that application the judge could request all supporting materials. The decision to issue a surveillance warrant had to be reasoned, and the judge reviewed whether all legal requirements were in place – including whether it was justified to resort to surveillance – on the basis of all materials in the case file rather than simply those provided by the requesting authority. That was a strong safeguard against frivolous or unfounded surveillance applications based on trumped-up charges. By law, the judge had up to forty-eight hours to consider the application, which was enough to permit proper review. That was important for courts receiving many surveillance applications. 286. The law set out clearly the maximum duration for which surveillance could be authorised. Although the maximum statutory periods for surveillance on national-security grounds were long – initially up to two years and altogether up to three years – in practice the courts never issued surveillance warrants for periods exceeding six months. 287. The judges who had authorised the surveillance could then oversee the way in which it had been carried out, since the requesting authority had to report to them and provide all surveillance results and any evidence produced on their basis. Judges could also seek additional materials. That form of ongoing supervision supplemented that by the National Bureau. 288. The statutory rules governing the screening, processing, storage and destruction of surveillance materials were sufficiently precise, and were supplemented by internal rules which were subject to supervision by the National Bureau. The general position was that any materials not used for evidence were to be destroyed quickly, the only exception being those relating to offences against national security, which were to be kept for fifteen years. Although the various rules, which differed depending on whether the materials contained classified information, had not been codified in a single enactment, they were all clear enough and contained sufficient safeguards against abuse. 289. As regards the National Bureau, its members were elected by and only accountable to Parliament. They had to meet stringent requirements and have high professional qualifications. Even if some of those members had no legal education or experience, that did not mean that they were not suitably qualified. It was true that upon nomination all members had to undergo security vetting by the State Agency for National Security, but that was inevitable when it came to sensitive information, and any revocation of their security clearance was amenable to judicial review. The Bureau had extensive inspection powers and could give instructions to the relevant authorities, which it did regularly, including with respect to the State Agency for National Security. No incidents casting doubt on the independence or integrity of any Bureau members had been brought to the attention of Parliament. Additional supervision of the system was ensured by the parliamentary committee. 290. Lastly, both the notification procedure and its limitations were fully consistent with the requirements of the Court’s case-law. Legal persons could obtain such notification as well, as illustrated by a case relating to a mobile telephone line subscribed by a bank in which the National Bureau had investigated a complaint about alleged tapping of that line by the bank’s management. The dedicated remedy – a claim under section 2(1)(7) of the 1988 Act – worked well when there had been notification by the Bureau, but could operate properly also in the absence of such notification, although there had so far been no such cases. Notification was not a formal prerequisite for bringing such a claim, and anyone could bring one simply on the basis of a suspicion of having been subjected to surveillance. If the claimant was unable to adduce evidence of that, the court dealing with the case could request such evidence from the relevant authorities or order the Bureau to investigate the case and report back. Legal persons could also use that remedy and obtain an award of damages. (b) The Court’s assessment (i) General principles 291. The general principles governing the question when secret measures of surveillance, including the interception of communications, can be justified under Article 8 § 2 of the Convention were set out in detail in Roman Zakharov (cited above, §§ 227-34, 236, 243, 247, 250, 257-58, 275, 278 and 287-88). Many of those principles were recently reiterated, although in relation to a somewhat different context – bulk interception – in Centrum för rättvisa (cited above, §§ 246-53) and Big Brother Watch and Others v. the United Kingdom ([GC], nos. 58170/13 and 2 others, §§ 332-39, 25 May 2021). 292. It is not necessary to repeat all of them here, except to emphasise that the overarching requirement is that a secret surveillance system must contain effective guarantees – especially review and oversight arrangements – which protect against the inherent risk of abuse and which keep the interference which such a system entails with the rights protected by Article 8 of the Convention to what is “necessary in a democratic society”. 293. In cases such as the present one, in which the applicants complain in the abstract about a system of secret surveillance rather than of specific instances of such surveillance, the relevant national laws and practices are to be scrutinised as they stand when the Court examines the admissibility of the application rather than as they stood when it was lodged (see Centrum för rättvisa, § 151, and Big Brother Watch and Others, § 270, both cited above). The other point of particular relevance to this case is that the assessment of whether the laws at issue offer effective guarantees must be based not only the laws as they exist in the statute book, but also on (a) the actual operation of the surveillance regime, and (b) the existence or absence of evidence of actual abuse (see Centrum för rättvisa, § 274, and Big Brother Watch and Others, § 360, both cited above). (ii) Application of those principles 294. In Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 79-84) the Court examined the system of secret surveillance in Bulgaria, as in force in mid-2007. It found that the procedure for authorising surveillance, if strictly adhered to, offered sufficient protection against arbitrary or indiscriminate surveillance. It went on to find deficiencies in relation to the following points: (a) lack of review by an independent body of the implementation of surveillance measures or of whether the material obtained through such measures would be destroyed within the time-limits if the surveillance had proved fruitless; (b) lack of sufficient safeguards in respect of surveillance on national security grounds and outside the context of criminal proceedings; (c) lack of regulations specifying with an appropriate degree of precision the manner of screening of surveillance materials, or the procedures for preserving their integrity and confidentiality and the procedures for their destruction; (d) lack of an independent body overseeing the functioning of the system of secret surveillance; (e) lack of independent control over the use of materials falling outside the scope of the original surveillance application; and (f) lack of notification of the persons concerned under any circumstances (ibid., §§ 85-91). On that basis, the Court concluded that Bulgarian law did not provide sufficient guarantees against the risk of abuse inherent in any system of secret surveillance (ibid., § 93). 295. Since that judgment, and partly it seems as a result of it, Bulgarian law governing secret surveillance had evolved considerably. All the same, the Committee of Ministers has not yet adopted a final resolution concluding that its functions relating to the supervision of the execution of that judgment have been completed; it has identified several outstanding points of concern in relation to the general measures taken by the Bulgarian authorities to implement that judgment (see paragraphs 228 and 229 above). For its part, the Court must, as already noted, examine not whether the Bulgarian authorities have executed that judgment, but whether the relevant Bulgarian law, as it stands now, meets the requirements of Article 8 of the Convention (see paragraph 257 above). (α) Accessibility of the law 296. All statutory provisions governing secret surveillance in Bulgaria, as well as the internal rules of the National Bureau for Control of Special Means of Surveillance (see paragraph 13 above), have been officially published and are thus accessible to the public. By contrast, the internal storage and destruction rules mentioned by the Government (see paragraphs 283 and 288 above) have apparently not been made accessible to the public. 297. For its part, the Chief Prosecutor’s instruction governing the deliberate or accidental use of special means of surveillance with respect to lawyers, although not published by the authorities, was published in the Supreme Bar Council’s journal (see paragraphs 27 to 30 above). It can be accepted that this made it sufficiently accessible for the persons that it concerns – practising lawyers such as the first and third applicants and organisations specialising in legal issues such as the second and fourth applicants (see, mutatis mutandis, Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173, and Autronic AG v. Switzerland, 22 May 1990, § 57, Series A no. 178). (β) Grounds on which secret surveillance may be resorted to and persons who can be placed under surveillance 298. The relevant issue in relation to the grounds on which secret surveillance may be resorted to and the persons who can be placed under surveillance is whether the law authorising or permitting surveillance lays down with sufficient clarity (a) the nature of the offences and other grounds which may give rise to surveillance and (b) the categories of persons who may be placed under surveillance. 299. In Bulgaria, the law sets outs in an exhaustive manner the serious intentional criminal offences which can trigger the use of special means of surveillance (see paragraph 18 above). Moreover, it specifies that such means can be used only if there are grounds to suspect that such an offence is being planned, or is being or has been committed, and only if other methods of detection or investigation would be unlikely to succeed (see paragraphs 18 and 20 above). The law is thus sufficiently clear on that point (see Roman Zakharov, cited above, § 244). Indeed, it is clearer than when the Court first examined it and found it adequate in this respect in Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 10 and 79). Although the types of offences falling into that list are varied, it appears that in practice in the vast majority of cases the authorities resort to surveillance in relation to the offences of (a) being the leader or member of a criminal gang and of (b) dealing in narcotic drugs (see the table under paragraph 19 above). 300. It is true that the law says that special means of surveillance can also be used for “activities relating to national security” (see paragraph 22 above). In the absence of more detailed information about the practice of the relevant Bulgarian courts and authorities on that point, it is difficult to check whether, as asserted by the Government (see paragraph 22 above), national security can never be a standalone ground for surveillance in Bulgaria. The statutory requirement that each surveillance application contain a full account of the circumstances which give cause to suspect that a relevant offence is being prepared or committed or has been committed, including when it comes to national security (see paragraph 39 above), and the wording of the provision which lays down the time-limit for using special means of surveillance to protect national security, which appears to link that with the prevention of offences against the Republic (see paragraph 79 (b) above) appear to support the Government’s submission. It remains unclear, however, how those provisions are being applied in practice. The lack of clarity on this point was already noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (a) above). 301. But even if it is accepted that under Bulgarian law the protection of national security can be a standalone ground for secret surveillance, that does not in itself contravene Article 8 of the Convention (see Association for European Integration and Human Rights and Ekimdzhiev, § 84; Centrum för rättvisa, § 261; and Big Brother Watch and Others, § 347, all cited above). What rather matters is that any potential abuses flowing from the inherently vague meaning and contours of the notion of national security can be checked. It must be noted in this connection that even when it comes to national security, the relevant authorities must seek judicial authorisation for the surveillance, which can limit their discretion in interpreting that notion and ensure that sufficient reasons to place someone under surveillance are present in each case (see Roman Zakharov, cited above, § 249). This is an important safeguard against arbitrariness and abuse. Its effectiveness is analysed in paragraphs 307 to 322 below. 302. The law also sets out in an exhaustive manner the categories of persons who, or objects which, may be placed under surveillance. When it comes to surveillance relating to criminal offences, the relevant categories are clearly defined: those are either people suspected of committing offences, people unwittingly used for their preparation or commission, people who have agreed to surveillance for their own protection, or cooperating witnesses in cases relating to a limited class of serious intentional offences, as well as objects capable of leading to the identification of such persons if their identity is unknown (see paragraph 23 (a), (c), (d) and (e) above). It is true that when it comes to surveillance on national-security grounds, the law is couched in vaguer terms: “persons or objects related to national security” (see paragraph 23 (b) above). But the considerations in paragraph 301 above about the possibility of checking potential abuses flowing from the vagueness of the notion of national security are equally relevant here. 303. A problem arises, however, with the lack of sufficient precision about the meaning of the term “objects” in section 12(1) of the 1997 Act (see paragraph 23 (b) and (c) above). The Act does not clarify whether the “objects” which may be placed under surveillance – either because they relate to national security or because they are necessary to identify persons who need to be placed under surveillance – need to be concrete (for instance, specific premises, a specific vehicle, or a specific telephone line). It must be noted in this connection that the secret surveillance regime in Bulgaria is intended to be a targeted regime rather than a bulk one (compare with Roman Zakharov, cited above, § 265). Although an extreme example, the case of Mustafa Sezgin Tanrıkulu (cited above, §§ 51-60) illustrates the risk of misinterpretation of insufficiently precise legal provisions normally meant to permit only targeted surveillance to in reality enable large-scale surveillance. So do the facts underlying the 2016 criminal conviction of the President of the Sofia City Court (see paragraph 56 above). In 2014 she had authorised the surveillance of an automated police information system (which itself surely contained data about many persons), apparently considering that that system was an “object” within the meaning of section 12(1) of the 1997 Act. She was then charged with authorising surveillance with respect to an “object” which did not properly fall within the statutory definition, but the courts acquitted her of that charge and found her guilty solely with respect to the time-limit of the authorisation which she had issued. Although as a result of the non-publication of the relevant judgments the reasons underlying that acquittal remain unclear, it tends to suggest than the Bulgarian courts are not averse to construing the term “objects” in section 12(1) of the 1997 Act in a rather extensive way. 304. In the light of these considerations, it can be said that Bulgarian law complies with the requirements of Article 8 of the Convention in respect of the grounds on which secret surveillance may be resorted to and persons who can be placed under surveillance, except for the lack of a more precise definition of the term “objects” in section 12(1) of the 1997 Act (see paragraph 23 (b) and (c) above). (γ) Duration of secret surveillance measures 305. Bulgarian law lays down clearly the initial and maximum duration of secret surveillance measures (see paragraph 79 above). It is also clear that surveillance beyond the initially authorised period is only possible if authorised by the competent judge, who must be presented not only with the same information as that required for the initial authorisation, but also with a full account of any surveillance results obtained so far (see paragraph 42 above). Lastly, the law sets out the circumstances in which surveillance must be stopped (see paragraph 82 above). There is, all the same, one area of concern, and that is the potential duration of the initial authorisation for surveillance on national-security grounds, which is up to two years (see paragraph 79 (b) above). The sheer length of that period, coupled with the inherently unclear contours of the notion of national security, significantly weakens the judicial control to which such surveillance must be subjected. This point has already been noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (c) above). Even if, as asserted by the Government (see paragraph 286 above), in practice the courts never issue such warrants for periods exceeding six months, that is not based on any statutory limitation. (δ) Authorisation procedures 306. The relevant factors under this rubric are (a) the status of the authority which can authorise secret surveillance, and (b) the manner in which that authority reviews surveillance requests and authorises surveillance. ‒ Standard procedure 307. When in 2007 it reviewed the authorisation procedure under the 1997 Act, the Court found that, if strictly adhered to, that procedure provided substantial safeguards against arbitrary or indiscriminate surveillance (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 84). The sophistication of the relevant provisions has since then grown (compare paragraphs 32 to 51 and 70 to 78 above with Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 12-17). Those procedures, however, must be examined not simply as they exist on paper but also as they operate in practice, as far as that can be ascertained on the basis of reliable official sources (compare with Roman Zakharov, cited above, §§ 263 and 265). 308. The relevant legislation in Bulgaria lays down robust safeguards intended to ensure that secret surveillance is resorted to only when that is truly justified. First, only a limited number of authorities can request surveillance, within the spheres of their respective competencies (see paragraphs 32 to 36 above). Secondly, the law appears to provide for a form of internal review preceding the submission of surveillance applications: those made by executive authorities must originate from the head of the respective authority, and public prosecutors intending to make such applications must notify their hierarchical superiors (see paragraph 37 above). Thirdly and most importantly, surveillance may be authorised only by the competent court president or an expressly authorised deputy (see paragraphs 46 and 47 above). Lastly, the authority which carries out the surveillance must, before proceeding with it, scrutinise the surveillance application for incompatibility ratione materiae or obvious mistakes and, if it spots issues in those respects, refer the application back to the judge who authorised the surveillance for reconsideration (see paragraph 73 above). 309. By law, surveillance applications must be duly reasoned and set out both the grounds for the requested surveillance and its intended parameters (see paragraphs 39, 40 and 41 above). An application must, in particular, (a) refer to the circumstances giving cause to suspect that a relevant offence is being prepared or committed or has been committed (including when it comes to national security), (b) set out (except in relation to terrorist offences) the investigative steps already taken and the results of any previous inquiries or investigations, (c) explain (except in relation to terrorist offences) why the requisite intelligence cannot be obtained through other means or why such other means would entail exceptional difficulties, and (d) explain (except in relation to terrorist offences) why the intended duration of the surveillance is necessary (see paragraphs 39 (a), (b), (d) and (f), 40 (a), (b), (e) and (f), and 41 (a) above). All materials on which the application is based must either be enclosed with it from the outset (for applications made outside criminal proceedings), or made available to the competent judge upon request (for applications made in the course of criminal proceedings) (see paragraph 44 above). When examining the application, the judge must review whether all legal prerequisites are in place and rule by means of a reasoned decision (see paragraph 51 above). One possible shortcoming at that stage is that although surveillance-warrant proceedings must of necessity be conducted without notice to the persons intended to be placed under surveillance, the requesting authority is under no duty to disclose to the judge fully and frankly all matters relevant to the well-foundedness of its surveillance application, including matters which may weaken its case. 310. Nonetheless, in spite of this latter potential shortcoming, the Court’s finding in Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 84) that, if strictly adhered to, the authorisation procedure in Bulgaria provides substantial safeguards against arbitrary or indiscriminate surveillance can only be confirmed. But it must also be seen whether those safeguards are being properly applied in practice. 311. The two courts in Bulgaria which have issued the highest number of surveillance warrants during the past decade were, by a large margin, the Sofia City Court (until 2015) and the Specialised Criminal Court (since 2015) (see the table under paragraph 49 above). According to an official report published in early 2017, until April 2015 all judges in the Sofia City Court issuing surveillance warrants gave no reasons whatever for their decisions, and in April-August 2015 gave, with few exceptions, only “blanket and generalised” reasons (see paragraph 59 (h) and (i) above). That is confirmed by the two 2012 and 2013 surveillance warrants issued by that court submitted by the applicants (see paragraph 61 above). It is true that after the scandal which erupted in 2015 in relation to the manner in which the Sofia City Court was processing surveillance applications (and which later led to the dismissal and criminal conviction of its president), the competent judges of that court began systematically giving reasons for their decisions to issue surveillance warrants (see paragraphs 56, 57 and 60 above). At about the same time, however, the number of surveillance applications addressed to that court sharply declined, and the largest number of such applications started being submitted to the Specialised Criminal Court (see the table under paragraph 49 above). Indeed, since 2018 the Specialised Criminal Court has been issuing roughly half of all surveillance warrants in Bulgaria (ibid.). 312. As is apparent from two recent judgments of the Specialised Criminal Court, about thirty surveillance warrants issued by its president and vice-presidents had completely blanket contents, were couched in terms which were general enough to be capable of relating to any possible surveillance application, and lacked any reference to the specific case to which they related except the number of the application (see paragraphs 64 and 65 above). There is no reason to think that those warrants were somehow exceptional and represent anything other than the normal practice in that court. 313. It can thus be concluded that no proper reasons have been given for the decisions to issue the vast majority of all surveillance warrants issued in Bulgaria in the past decade. This is of particular relevance as the contemporaneous provision of reasons is a vital safeguard against abusive surveillance (see Dragojević v. Croatia, no. 68955/11, §§ 88-101, 15 January 2015; Dudchenko v. Russia, no. 37717/05, §§ 97-98, 7 November 2017; and Liblik and Others v. Estonia, nos. 173/15 and 5 others, §§ 137-41, 28 May 2019). This is because the provision of reasons, even if succinct, is the only way of ensuring that the judge examining a surveillance application has properly reviewed the application and the materials which support it, and has truly directed his or her mind to the questions whether the surveillance would be a justified and proportionate interference with the Article 8 rights of the person(s) against whom it will be directed, and of any person(s) likely to be collaterally affected by it. In Bulgaria, that is particularly important in view of the applicants’ allegation – which seems corroborated by, inter alia, some recent developments (see paragraph 67 above) – that criminal proceedings can be opened in a frivolous and abusive manner, chiefly with a view to making it possible to place someone under surveillance for ulterior motives (see paragraph 279 above). As demonstrated by the arrangements in the Sofia City Court since August 2015, the provision of reasons, regardless of whether a surveillance application is allowed or refused, is not unachievable in practice, in spite of the fairly short time-limits for ruling on such applications (see paragraph 60 above). 314. It is true that, as noted in the two above-mentioned judgments of the Specialised Criminal Court (see paragraphs 64 and 65 above), the absence of reasons cannot automatically lead to the conclusion that the judges issuing surveillance warrants have not properly reviewed the applications for them. But three factors raise serious misgivings in that respect. 315. The first such factor is the sheer workload entailed by such applications, which by law can only be dealt with by the presidents or vice ‑ presidents of the respective courts. The National Bureau has repeatedly drawn attention to the inadequate staff and resources placed at the disposal of the Specialised Criminal Court to process properly all surveillance applications submitted to its president and vice-presidents (see paragraph 50 above). The Specialised Criminal Court has itself also drawn attention to the ever-increasing workload entailed by the large volume of surveillance applications submitted to it (see paragraphs 62 and 63 above), and the issue has already been highlighted by the Committee of Ministers in the context of its supervision of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (b) above). 316. The second factor is the high percentage of surveillance applications which are being allowed (see the table under paragraph 55 above). 317. The third factor is the express position of the Specialised Criminal Court of Appeal – which has direct supervisory jurisdiction over the Specialised Criminal Court – that a judge dealing with a surveillance application need only check whether the formal requirements to allow it are satisfied, without engaging with the materials in support of the application (see paragraph 66 above). 318. All of the above cannot be dismissed as a mere technicality which does not reflect on the substantive operation of the system of secret surveillance in Bulgaria. There is evidence which tends to suggest that the manner in which the competent judges go about examining surveillance applications has resulted in actual instances of unjustified surveillance. 319. First, the president of the Sofia City Court was dismissed in connection with the manner in which she had organised the processing of such applications in that court at the time when it was the court in Bulgaria which was issuing the highest number of surveillance warrants (see paragraph 57 above). She was also criminally convicted of deliberately authorising surveillance in breach of the statutory requirements (see paragraph 56 above). Although no such charges have been laid against other judges of the Sofia City Court, there is evidence that the problem was far more generalised (see paragraphs 58 and 59 (c), (d), (e), (f) and (g) above). 320. As for the Specialised Criminal Court, it is noteworthy that in July 2021 the Bulgarian Parliament created an ad hoc committee to investigate the possibly unlawful and unjustified use of special means of surveillance with respect to opposition politicians, journalists, and hundreds of participants in the 2020 anti-government protests in Bulgaria, on the basis of warrants issued by that court. Although that committee’s report, which was finalised in September 2021, is not yet publicly available, the statements which the Minister of Internal Affairs made in Parliament at the time when the committee was being set up already suggest that the problem with the absence of proper judicial scrutiny has seriously affected the surveillance operations authorised by the Specialised Criminal Court (see paragraph 67 above). 321. It follows that the Court cannot be satisfied that the procedures for authorising secret surveillance, as operating in practice in Bulgaria, effectively guarantee that such surveillance is authorised only when genuinely necessary and proportionate in each case (compare with Roman Zakharov, cited above, §§ 262-63). 322. The additional vetting carried out by the surveillance authorities after the grant of judicial authorisation (see paragraph 73 above) cannot remedy that lack of proper judicial scrutiny, for two reasons. First, that vetting is limited to incompatibility ratione materiae or obvious mistakes (ibid.). Secondly, the instances in which that additional safeguard has been triggered are apparently extremely rare (see paragraph 75 above). ‒ Urgent procedure 323. By contrast, it does not appear that a discrete issue arises with regard to the urgent procedure, under which special means of surveillance may be deployed without a prior judicial warrant if there is an immediate risk that a serious intentional offence is about to be committed, or a risk of an immediate threat to national security (see paragraph 77 above). When the authorities resort to that urgent procedure, the competent judge must within twenty-four hours assess and approve retrospectively the need for them to have done so; otherwise the surveillance operation must stop. The judge is not required to just review the need to pursue the surveillance, but must also validate the surveillance which has already taken place, as well as its results (contrast Roman Zakharov, cited above, § 266, and Konstantin Moskalev v. Russia, no. 59589/10, §§ 51-52, 7 November 2017). There have moreover been few instances in which that procedure has been used, and in 2018-20 those even diminished to a negligible percentage (see paragraph 78 above). (ε) Procedures for storing, accessing, examining, using, communicating and destroying surveillance data ‒ In general 324. In Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 86), the Court found that there was an apparent lack of regulations specifying with an appropriate degree of precision the manner of screening of the information obtained through secret surveillance, or the procedures for preserving its integrity and confidentiality and its destruction. 325. The 1997 Act and the Code of Criminal Procedure have since then been amended, and now contain provisions dealing with various aspects of those issues. Lacunae remain, however, in several areas. 326. First, while those provisions specify the way in which information from the “primary recording” is to be reproduced in the “derivative data carrier” and then in any evidentiary material (see paragraphs 87 to 91 above), they say nothing about the way in which the “primary recording” and the “derivative data carrier” are to be stored. Nor do they circumscribe in any way the officials within the relevant authorities who are entitled to access them, or lay down any safeguards ensuring the integrity and confidentiality of those materials. It must be noted in this connection that since the repeal in August 2013 of point 8 of part II of Schedule no. 1 to the Protection of Classified Information Act 2002, information obtained by using special means of surveillance is no longer classified (see paragraph 102 above). It is thus apparently not subject to the rules governing the protection of such information – although the Technical Operations Agency maintained that despite the amendment both the “primary recording” obtained as a result of surveillance and the “derivative data carrier” remained classified information (see paragraph 104 above). As noted in paragraph 296 above, the internal rules to which the Government referred (see paragraphs 283 and 288 above) have not been published. They were not even disclosed in these proceedings (compare with Big Brother Watch and Others, cited above, § 423). 327. Moreover, aside from the general rule that the content of the “derivative data carrier” must fully match that of the “primary recording” (see paragraph 89 in fine above), no publicly available rules exist about the way in which the “primary recording” and the “derivative data carrier” are to be examined: how the authorities are to sift through the information in them and decide which parts are relevant and are to be kept and used as evidence, and which parts are irrelevant and are to be discarded. Although the rules governing the possible use of materials obtained as a result of secret surveillance say that any such materials, including surplus information, can be used only to prevent, detect or prove serious intentional criminal offences, or to protect national security (see paragraphs 18, 84, 100 and 101 above), it is thus unclear how compliance with that limitation is ensured in practice. 328. The rules governing the destruction of the “primary recording” and the “derivative data carrier” appear sufficiently clear, although a discrepancy exists between the position in relation to materials obtained as a result of surveillance outside the framework of already pending criminal proceedings and the position in relation to materials obtained in the course of criminal proceedings: the law provides for automatic destruction and subsequent report to the judge who has authorised the surveillance in the former case, and for a report to that judge and destruction by his or her order in the latter case (see paragraphs 94 to 99 above). 329. There are, however, no special rules about the storage or destruction of the resulting evidentiary material. At least two copies of that evidentiary material are produced in each case (which appear to consist in computer files containing audio- or video-recordings – see paragraph 90 above) and of the written records which accompany them (see paragraph 91 above). The first copy is sent to the judge who has issued the surveillance warrant (ibid.). The second copy is kept first by the requesting authority and then, if criminal proceedings are opened in connection with it, it is transferred to the case file of those proceedings – first the case file kept by the prosecuting authorities and then the case file kept by the criminal court(s) (see paragraph 92 above). It appears that both copies are stored and destroyed together with the case files of which they form part. It cannot be accepted that this provides an appropriate level of protection for information which may concern intimate aspects of someone’s private life or otherwise permit a disproportionate invasion into the privacy of the people concerned or in the “correspondence” of any legal persons concerned. The scenario in which no criminal proceedings are opened also throws up many uncertainties. 330. Nor are there any publicly available rules governing the storage of information obtained through surveillance on national-security grounds – which must be kept by the relevant requesting authority for fifteen years after the end of the surveillance (see paragraph 98 above). 331. The Government did not argue that all or some of the above gaps have been filled by the provisions added in 2019 to the 2002 Act to transpose Directive (EU) 2016/680 (see paragraph 219 above), and it is unclear whether the competent authorities have regard to those data-protection rules when processing information obtained as a result of secret surveillance. Moreover, those rules cannot provide a safeguard with respect to information relating to legal persons (see paragraphs 216 and 239 above). 332. The apparent lack of clear regulation in all these fields, and of proper safeguards, makes it possible for information obtained as a result of secret surveillance to be misused for ends which have little to do with the statutory purpose. ‒ With regard to surveillance affecting legal professional privilege 333. A further issue in this regard arises from the absence of legal provisions specifying with an appropriate degree of precision the fate of information resulting from secret surveillance which may have affected materials subject to legal professional privilege. It is open to question whether the Chief Prosecutor’s instruction on the point, which was a purely internal act issued pursuant to his power to make instructions governing the work of the prosecuting authorities (see paragraphs 27 above), can be seen as “law” for the purposes of Article 8 § 2 of the Convention (see, mutatis mutandis, Silver and Others v. the United Kingdom, 25 March 1983, § 86, Series A no. 61; Malone v. the United Kingdom, 2 August 1984, §§ 68 and 79, Series A no. 82; and Amann v. Switzerland [GC], no. 27798/95, § 75, ECHR 2000-II). It is moreover doubtful whether that instruction lays down sufficient safeguards in respect of secret surveillance directed against lawyers, since it simply makes this subject to the existence of a reasonable suspicion that they have committed an offence (see paragraph 28 above), which is in principle a requirement for all surveillance, not just that directed against lawyers (see paragraphs 39 and 54 above). The instruction also seems to contradict the express terms of section 33(1), (2) and (3) of the Bar Act 2004, according to which all lawyers’ records and communications, regardless of their form, are privileged without exception (see paragraph 26 above). Nor does the instruction lay down enough safeguards with respect to materials obtained as a result of accidentally intercepted lawyer-client communications (see, mutatis mutandis, R.E. v. the United Kingdom, no. 62498/11, §§ 138-41, 27 October 2015, and Dudchenko v. Russia, no. 37717/05, § 107, 7 November 2017). Its only provision dealing with the issue, point 13, simply says that if the authorities intercept the conversation of a lawyer with a client or with another lawyer, and that conversation touches upon a client’s defence, they must not prepare evidentiary material on its basis, unless the surveillance reveals that the lawyer has him- or herself engaged in criminal activity (see paragraph 29 above). That leaves open the question how precisely any such intercept materials are to be destroyed, as expressly required by section 33(3) of the Bar Act 2004 (see paragraph 26 above). Nor does the instruction appear to encompass all sorts of lawyer-client communications: by its terms, point 13 of the instruction applies solely to communications relating to a client’s defence, which implies already pending litigation, and perhaps even just criminal proceedings. (στ) Oversight arrangements 334. The relevant factors for deciding whether the oversight arrangements are adequate are (a) the independence of the supervisory authorities, their competences, and their powers (both to access materials and to redress breaches, in particular order the destruction of surveillance materials), and (b) the possibility of effective public scrutiny of those authorities’ work. 335. In Bulgaria, three authorities can supervise the use of special means of surveillance: (a) the judge who has issued the respective surveillance warrant; (b) the National Bureau; and (c) a special parliamentary committee (see paragraphs 106 to 135 above). 336. That system’s sophistication goes well beyond the arrangements condemned by the Court in Association for European Integration and Human Rights and Ekimdzhiev (cited above, §§ 87-88). It nevertheless falls short of the requisite standard of effectiveness in several respects. 337. The judge who has issued the surveillance warrant is not in a position to ensure effective oversight. It is true that he or she must be informed of the end of the respective surveillance operation (see paragraphs 105 and 107 above, and contrast Roman Zakharov, cited above, § 274), and given a report about it (see paragraph 106 above). But in all instances of surveillance outside already pending criminal proceedings that judge has no power to order remedial measures, such as the destruction of surveillance materials. More importantly, he or she is not empowered or expected to carry out on-site inspections, and performs his or her supervisory duties solely on the basis of the report submitted by the authorities. Also, in view of the high workload of the judges concerned (see paragraph 315 above), it is open to doubt whether that supervision could be effective in practice. In sum, although a valuable safeguard, that mechanism is insufficient to ensure that surveillance powers are not being abused. 338. For its part, the main supervisory body, the National Bureau, suffers from several shortcomings undermining its effectiveness in practice. 339. First, there is no guarantee that all of its members are sufficiently independent vis-à-vis the authorities which they must oversee. By law, individuals with professional experience in the law-enforcement or the security services may become members of the National Bureau (see paragraph 109 above). After serving their five-year term (which, granted, can be renewed), they are entitled to regain their previous posts (see paragraph 111 above). This potential “revolving door” mechanism can raise misgivings about the practical independence of such members of the Bureau and about possible conflicts of interests on their part (see, mutatis mutandis, Centrum för rättvisa, cited above, § 359). Indeed, the Bureau’s current chairperson came directly from the State Agency for National Security, and the deputy chairperson who was elected in 2018 and resigned in mid-2021 (after having been placed under sanctions by the authorities of the United States of America on serious corruption allegations) had been employed by the security services for more than two and a half decades before joining the Bureau (see paragraphs 112 and 115 above). 340. Another aspect of the National Bureau’s organisation raises further misgivings in this respect. Before being appointed to their posts, its members must undergo security vetting by one of the very authorities whose work the Bureau is overseeing – the State Agency for National Security (see paragraphs 109 and 110 above). This creates an obvious conflict of interests for that Agency. If it later revokes the security clearance of members of the Bureau, they must be removed from their post since they automatically cease being eligible to occupy it; that already happened once in 2017-18 (see paragraphs 111 (c) and 114 above). Although the Agency’s decision to revoke a security clearance is amenable to judicial review, that possibility for it to influence the Bureau’s membership is capable of affecting the Bureau’s independence and the objectivity and thoroughness of its supervisory work, especially with regard to that Agency. 341. The issue with the National Bureau’s independence vis-à-vis the authorities which it oversees has already been highlighted by the Committee of Ministers of the Council of Europe in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (e) above). 342. Secondly, misgivings arise about the qualifications of some of the members of the National Bureau. Only one of its current five members has legal training and experience (see paragraph 112 above, and contrast Big Brother Watch and Others, cited above, § 407). This point has also been noted by the Committee of Ministers (see paragraph 229 (e) above). 343. Thirdly, it does not appear that when carrying out on-site inspections members of the National Bureau and its employees are able to have unfettered access to all relevant materials held by the prosecuting authorities and the State Agency for National Security, especially materials enabling them to check the well-foundedness of surveillance applications (reasonable suspicion and proportionality in each case) (see paragraphs 118 and 119 above). The Bureau has also complained of the repeated provision of incorrect information by the main surveillance authority in Bulgaria, the Technical Operations Agency (see paragraph 118 in fine above). Such obstruction seriously weakens the Bureau’s oversight capabilities, and cannot be seen as justified (compare, mutatis mutandis, with Roman Zakharov, cited above, § 281). Providing Bureau members with access to all materials in the case file of a criminal case cannot prejudice ongoing investigations since those members have the highest security clearance and are bound by professional secrecy (see paragraphs 109, 110 and 129 above). The Committee of Ministers has already drawn attention to that issue as well (see paragraph 229 (e) above). 344. Lastly, the National Bureau has no power to order remedial measures, such as the destruction of surveillance materials. It can only bring irregularities to the attention of the heads of the relevant authorities and the prosecuting authorities, or of the Supreme Judicial Council, for irregularities attributable to judges (see paragraphs 122 and 123 above). The Bureau’s power to give instructions appears to relate solely to instructions intended to improve practices rather than instructions in specific cases, as attested in particular by their limited number per year (see paragraphs 120 and 121 above). 345. The special parliamentary committee is not empowered to order remedial measures either (see paragraph 127 above). Moreover, unlike the National Bureau, it does not appear to conduct regular inspections (see paragraph 128 above and compare with the table under paragraph 124 above). 346. The Government did not argue, and there is no indication, that the Commission for Protection of Personal Data or the Inspectorate attached to the Supreme Judicial Council have so far played any role in the oversight of the system of secret surveillance by virtue of their powers under 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraphs 225 and 226 above). 347. In view of the defects outlined above, the system of overseeing secret surveillance in Bulgaria as it is currently organised does not appear capable of providing effective guarantees against abusive surveillance. (ζ) Notification 348. The relevant factors under this rubric are (a) when is such notification possible, and (b) whether it is a prerequisite for using the available remedies. 349. As already noted in paragraph 267 above, the National Bureau must notify someone who has been placed under secret surveillance only if that has happened unlawfully, whereas under the Court’s case-law such notification is, in the absence of a remedy available without prior notification, required in all cases, as soon as it can be made without jeopardising the purpose of the surveillance (see Klass and Others v. Germany, 6 September 1978, § 58, Series A no. 28; Weber and Saravia v. Germany (dec.), no. 54934/00, § 135, ECHR 2006-XI; and, more recently, Roman Zakharov, cited above, § 287). It is telling in that respect that the number of notifications made by the Bureau each year relative to the annual number of surveillance warrants is very small (compare the tables under paragraphs 55 and 135 above). Moreover, the Bureau is only required to notify individuals, not legal persons (see paragraph 130 above) – a point already noted by the Committee of Ministers in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (e) in fine above). 350. The Government did not argue, and there is no indication, that there have so far been instances in which such notification has been made by virtue of section 54(4) of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 220 above). Nor does it appear that there have so far been any instances in which people have been able to obtain information about secret surveillance under section 55(3) in fine, section 56(6) in fine or section 57(1) and (2) of the same Act, as worded after the 2019 amendment (see paragraphs 221 and 224 above). 351. At the same time, as already noted in paragraphs 266 to 271 above, notification by the National Bureau is normally a prerequisite to bringing a claim for damages under section 2(1)(7) of the 1988 Act; the only other situation in which such a claim may become available is when the secret surveillance has come to light because the materials from it have been used in criminal proceedings. (η) Remedies 352. In 2009 Bulgaria put in place a dedicated remedy in respect of secret surveillance: a claim for damages under section 2(1)(7) of the 1988 Act (see paragraph 136 above). But that remedy, although effective in some scenarios, suffers from three serious limitations outlined in paragraphs 266 to 273 above: (a) it has so far not been able to operate in the absence of prior notification by the National Bureau that someone has been placed under surveillance, (b) it does not entail an examination of the necessity for the surveillance in each case, and (c) it is not open to legal persons. 353. Moreover, the only form of relief available in such proceedings is money damages (see paragraph 139 above); the courts have no power to order the destruction of surveillance material (contrast, for instance, Big Brother Watch and Others, cited above, § 413). The Committee of Ministers has already highlighted this point in the context of its supervision of the execution of Association for European Integration and Human Rights and Ekimdzhiev (cited above) (see paragraph 229 (f) in fine above). 354. As noted in paragraph 275 above, the novel remedies available under the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraphs 221, 224 and 227 above), have so far not been shown to be effective in relation to secret surveillance, and are moreover not available to legal persons. 355. It follows that Bulgarian law does not provide an effective remedy to all persons suspecting, without concrete proof, that they have been unjustifiably subjected to secret surveillance. It also follows that the Government’s objection that domestic remedies have not been exhausted, which was joined to the merits (see paragraph 259 above), must be rejected. (θ) Conclusion 356. Although significantly improved after they were examined by the Court in Association for European Integration and Human Rights and Ekimdzhiev (cited above), the laws governing secret surveillance in Bulgaria, as applied in practice, still fall short of the minimum safeguards against arbitrariness and abuse required under Article 8 of the Convention in the following respects: (a) the internal rules governing the storage and destruction of materials obtained via surveillance have not been made accessible to the public (see paragraph 296 in fine above); (b) the term “objects” in section 12(1) of the 1997 Act is not defined in a way so as ensure that it cannot serve as a basis for indiscriminate surveillance (see paragraph 303 above); (c) the excessive duration of the initial authorisation for surveillance on national-security grounds – two years – significantly weakens the judicial control to which such surveillance is subjected (see paragraph 305 above); (d) the authorisation procedure, as it operates in practice, is not capable of ensuring that surveillance is resorted to only when “necessary in a democratic society” (see paragraphs 307 to 322 above); (e) a number of lacunae exist in the statutory provisions governing the storing, accessing, examining, using, communicating and destroying of surveillance data (see paragraphs 326 to 332 above); (f) the oversight system, as currently organised, does not comply with the requirements of sufficient independence, competence and powers (see paragraphs 335 to 347 above); (g) the notification arrangements are too narrow (see paragraphs 349 to 351 above); and (h) the dedicated remedy, a claim under section 2(1)(7) of the 1988 Act, is not available in practice in all possible scenarios, does not ensure examination of the justification of each instance of surveillance (by reference to reasonable suspicion and proportionality), is not open to legal persons, and is limited in terms of the relief available (see paragraphs 266 to 273 and 352 to 355 above). 357. Those shortcomings in the legal regime appear to have had an actual impact on the operation of the system of secret surveillance in Bulgaria. The recurring scandals relating to secret surveillance (see paragraphs 56, 57, 59 and 67 above) suggest the existence of abusive surveillance practices, which appear to be at least in part due to the inadequate legal safeguards (see Association for European Integration and Human Rights and Ekimdzhiev, § 92, and Roman Zakharov, § 303, both cited above). 358. It follows that the Bulgarian laws governing secret surveillance do not fully meet the “quality of law” requirement and are incapable of keeping the “interference” entailed by the system of secret surveillance in Bulgaria to what is “necessary in a democratic society”. 359. There has therefore been a breach of Article 8 of the Convention. RETENTION AND ACCESSING OF COMMUNICATIONS DATA 360. The applicants also complained that the system of retention and subsequent accessing of communications data in Bulgaria did not meet the requirements of Article 8 of the Convention, and that they did not have an effective remedy in that respect, in breach of Article 13 of the Convention. 361. In the light of the Court’s case-law (see Roman Zakharov, cited above, § 307), this complaint likewise falls to be examined solely under Article 8 of the Convention, whose text, so far as relevant, has been set out in paragraph 247 above. AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions (a) Victim status of the applicants (i) The Government 362. The Government submitted that the applicants could not claim to be victims of a violation of their right to respect for their private life or correspondence. That was because under Bulgarian law communications data could be accessed only in connection with serious criminal offences, even when national security was at stake. Moreover, since in Bulgaria legal persons could not bear criminal liability, the two applicant organisations were outside the scope of the contested laws. 363. The Government went on to argue that the applicants, who all had the requisite legal expertise, could have urged the special parliamentary committee to check whether their retained communications data had been accessed unlawfully. That committee was also bound to inform individuals of unlawful requests for access, or access, of their communications data on its own initiative. Individuals could also seek information on the point under the 2002 Act – which, as amended in 2019, had transposed Directive (EU) 2016/380 – or under the GDPR, from the communications service providers themselves or from the Commission for Protection of Personal Data. The notification procedure was coupled with possibilities to complain to that Commission and seek damages from the communications service providers or from the relevant authorities under the relevant provisions of the 2002 Act or the general law of tort. Since those remedies were effective, the applicants’ failure to use them stripped them of their victim status and rendered their complaint an actio popularis. (ii) The applicants 364. The applicants argued that in view of the similarities between secret surveillance and the retention and subsequent accessing of communications data, the approach to the question whether they could claim to be victims of interference with their rights under Article 8 of the Convention on account of the latter had to be the same as the one taken by the Court with respect to the former. They all used electronic communications services, and the laws in issue applied to all such users, including legal persons. The fact that those laws enabled the authorities to access retained data only in connection with serious criminal offences – a rule which had in any event been flouted on several reported occasions – did not detract from that position, especially in the light of the many thousands of access applications in each of the recent years and the feeble oversight arrangements. The applicants further underlined that the retained data enabled the profiling of all persons in the country. Its unlawful use in disciplinary proceedings against judges and prosecutors in 2010-11 had amply illustrated the potential for abuse. 365. Bulgarian law did not lay down effective procedures whereby the applicants could obtain information about the retention or accessing of their communications data or compensation in respect of that. They could hence claim to be victims of a violation owing to the mere existence of laws permitting the retention and accessing of communications data. (b) Exhaustion of domestic remedies 366. Based on the arguments summarised in paragraph 363 above, the Government further submitted that the applicants had not exhausted domestic remedies. 367. The applicants disputed that assertion, noting that when they had lodged their application, neither the Commission for Protection of Personal Data nor the special parliamentary committee had had any functions relating the retention or accessing of communications data. It had therefore not been open to them to complain to either of those authorities about the matter. The Court’s assessment 368. Similarly to the position in relation to the complaint about secret surveillance (see paragraph 259 above), both of the Government’s objections are so closely linked to the substance of the applicants’ complaint that they must be joined to the merits. 369. The complaint is, moreover, not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible. MeritsThe applicants’ victim status and the existence of an interference The applicants’ victim status and the existence of an interference The applicants’ victim status and the existence of an interference (a) The parties’ submissions 370. The parties’ submissions have been summarised in paragraphs 362 to 365 above. (b) The Court’s assessment 371. Under Bulgarian law, all communications service providers in the country must retain all the communications data of all of their users for six months, with a view to making that data available to the authorities for certain law-enforcement purposes (see paragraphs 161 and 163 above). Various authorities may then access that data (see paragraphs 167 to 169 above). It is appropriate to analyse those two steps separately, since each of them may affect the rights guaranteed under Article 8 of the Convention in different ways and to different degrees (see, mutatis mutandis, Centrum för rättvisa, §§ 239-43, and Big Brother Watch and Others, §§ 325-29, both cited above). (i) Retention of communications data by communications service providers 372. It is settled that the mere storing of data relating to someone’s private life amounts to interference with that individual’s right to respect for his or her “private life” (see, with respect to personal data relating to the use of communications services, Breyer v. Germany, no. 50001/12, § 81, 30 January 2020; Centrum för rättvisa, cited above, § 244, and Big Brother Watch and Others, cited above, § 330). All types of communications data at issue in the present case – subscriber, traffic and location data – can relate, alone or in combination, to the “private life” of those concerned. Bulgarian law requires all communications service providers in the country to retain the entirety of that data of all users for potential subsequent access by the authorities (see paragraph 161 above). It has not been disputed that the two individual applicants use such services. It follows that this legally mandated retention is in itself an interference with their right to respect for their “private life”, irrespective of whether the retained data are then accessed by the authorities. 373. That retention amounts also to interference with those applicants’ right to respect for their correspondence. The Court has already held that the storage of traffic and location data relating to a mobile telephone line amounts to interference with the right of the person using that line to respect for his “correspondence” (see Ben Faiza v. France, no. 31446/12, §§ 66-67, 8 February 2018). There is no reason to hold otherwise with respect to other types of communications, such as electronic communications, or with respect to communications data more generally. 374. As for the two applicant organisations, it is settled that the communications of legal persons are covered by the notion of “correspondence” in Article 8 § 1 of the Convention (see Association for European Integration and Human Rights and Ekimdzhiev, § 60, and Liblik and Others, § 110, both cited above). It has not been disputed that the two organisations likewise use communications services in Bulgaria. It follows that the legally mandated retention of the communications data of all users of communications services in the country is interference with their right to respect for their “correspondence”. 375. The interference, although carried out by private persons – the communications service providers – is required by law. Indeed, service providers who fail to comply with their statutory data-retention obligations are liable to sanctions (see paragraph 161 in fine above). It follows that the interference is attributable to the Bulgarian State ( compare with Digital Rights Ireland and Others, cited in paragraph 233 above, § 34 ). (ii) Accessing of retained communications data by the authorities 376. Access by the authorities to the retained communications data constitutes a further interference with right to respect for one’s private life and one’s communications under Article 8 of the Convention (see, mutatis mutandis, Centrum för rättvisa, § 244, and Big Brother Watch and Others, § 330, both cited above). But it is plain that not all retained communications data is subsequently accessed by the authorities. Since it is impossible for an individual or a legal person to know for certain whether their data has been so accessed, it is appropriate to analyse the question whether the applicants may claim that they are victims of interference with their rights under Article 8 owing to the mere existence of laws permitting authorities to do so with reference to the same criteria as the ones used in relation to secret surveillance: (a) the scope of the laws permitting such access and (b) the availability of an effective remedy (see paragraphs 262 to 275 above). (α) Scope of the relevant law 377. Under the relevant statutory provisions, the authorities may access the retained communications data of anyone if that is necessary for (a) national-security purposes; (b) the prevention, detection or investigation of serious criminal offences; (c) the tracing of people who have been finally sentenced to imprisonment with respect to a serious criminal offence or who have fallen or could fall in a situation which puts their life or health at risk; and (d) (this applies solely to cell ID) the carrying out of search-and-rescue operations with respect to people in distress (see paragraph 163 above). Since the communications data of anyone in Bulgaria can theoretically become necessary for one or more of those purposes, all four applicants, including the applicant organisations, can possibly be affected by the contested legislation. (β) Availability of an effective remedy 378. The next question is whether there exists an effective remedy which can alleviate the suspicion among the general public that retained communications data is being abusively accessed and used. 379. Neither the 2007 Act nor Article 159a of the Code of Criminal Procedure provide for a remedy with respect to the retention or accessing of communications data. 380. Nothing suggests that the remedies under section 38(1) and (7), section 39(1) and (2), and section 82(1) of the 2002 Act, as worded after the 2019 amendment intended to transpose Directive (EU) 2016/680 (see paragraphs 218 and 227 above), have so far been used to provide redress with respect to the retention of communications data by communications service providers or with respect to its accessing and use by the authorities. In the absence of reported decisions by the Bulgarian courts, it is not for this Court to say whether or how those remedies, which are general in application, can operate in such cases. It is true that those remedies are novel, and that they are part of a branch of law which has only developed relatively recently. But it was for the Government to explain their manner of operation, and as far as possible support their explanations with concrete examples (see, mutatis mutandis, Roman Zakharov, § 295, and Mustafa Sezgin Tanrıkulu, §§ 28-29, both cited above). The Government were, however, vague on the point, contenting themselves to say that the 2019 amendment had introduced provisions governing the liability of communications service providers and the relevant authorities in respect of retained and accessed communications data (see paragraphs 363 and 388 above, and contrast the circumstances in Ringler v. Austria (dec.) [Committee], no. 2309/10, §§ 12-13 and 51-54, 15 May 2020). In the absence of further particulars about the actual operation of those remedies with respect to communications data, it cannot be accepted that they are currently effective in that respect. Moreover, those remedies are not open to legal persons (see paragraphs 216 and 239 above). 381. Nor is there any evidence that a remedy is available under the general law of tort. 382. It follows that the public’s misgivings about the threat of abusive accessing and use of communications data by the authorities cannot be sufficiently dispelled by the presence of effective remedies in that respect. (γ) Conclusion 383. In view of the above considerations, there is no need to inquire whether the applicants are at risk of having their retained communications data accessed by the authorities owing to their personal situation (see, mutatis mutandis, Centrum för rättvisa, cited above, §§ 175-76). 384. It follows that an examination of the laws governing the accessing of retained communications data by the authorities in the abstract is justified. It also follows that the Government’s objection that the applicants may not claim to be victims of a violation of Article 8 of the Convention allegedly caused by the mere existence of such laws, which was joined to the merits (see paragraph 368 above), must be rejected. Justification for the interference (a) The parties’ submissions (i) The applicants 385. The applicants submitted that the manner in which the law regulated the authorisation of access to communications data – in particular, the lack of any requirement for the authority seeking access to provide evidence in support of its application – did not ensure enough guarantees against abuse. There was, moreover, no requirement for ongoing judicial oversight. The publicly available judicial decisions on access applications, many of which contained only stereotyped reasoning, showed that judicial control in such cases was formal and provided few guarantees against abuse. 386. The remaining oversight arrangements were likewise insufficient. The special parliamentary committee was under no duty to examine individual complaints, and there were no publicly available rules governing its work. It was hence unsurprising that although the authorities made tens of thousands of requests for access to retained communications data each year, that committee had so far received only between one and four complaints annually. Even so, the committee’s reports had recorded worrying breaches of the law. For its part, the Commission for Protection of Personal Data was simply gathering statistics about the retention of communications data. Its reports did not mention any instances in which it had examined individual complaints, and it was unclear how the GDPR could come into play in connection with that. 387. Moreover, the law did not require notification in cases of lawful access to retained communications data. That was a serious deficiency since the way in which the lawfulness of the access in each case was being assessed remained unclear. In practice that meant that if a court had issued an access warrant, those concerned would then not be notified of the access and would thus be unable to use any remedies in relation to it. Claiming damages under the GDPR was impossible, since it did not apply to data processing by the authorities for law-enforcement purposes. Unlike the position with respect to secret surveillance, the 1988 Act did not envisage liability of the courts or the prosecuting authorities in connection with retained communications data. But even if the law had made it possible to claim damages in this context, it would in practice be hard for individuals or legal persons alike to show non-pecuniary damage on account of such matters since they could not prove that an action of which they had remained unaware had caused them negative emotions. Pecuniary damage was, for its part, nearly impossible to establish. To be effective, a remedy in that domain had to address those points, for instance by providing for lump-sum compensation. (ii) The Government 388. The Government submitted that the law specified clearly what communications data was to be retained, for how long, and for what purposes. A 2019 amendment implementing the GDPR and Directive (EU) 2016/680 had brought in stringent data-protection safeguards and provisions governing the liability of communications service providers and the authorities, and had expanded the powers of the supervisory authorities. The relevant rules were foreseeable and contained enough safeguards against arbitrariness. 389. This type of data retention was done in the interests of national security and public safety, and for the prevention of crime. 390. As for its necessity, there was no European consensus about the need to retain communications data or its modalities. Even after the CJEU’s judgments in Digital Rights Ireland and Others and Tele2 Sverige and Watson and Others (see paragraphs 233 and 240 above), many member States of the European Union had not fully repealed their laws providing for the generalised retention of communications data, since that was a valuable instrument for combatting serious crime. A more restrictive approach could prevent the proper operation of that instrument. The CJEU had not altogether dismissed the importance of retaining communications data, and the matter remained within the States’ margin of appreciation. 391. In Bulgaria, retained communications data could be accessed only in connection with serious offences and on the basis of a judicial warrant. The law set out in an exhaustive way the authorities which could seek such warrants, and required them to give enough reasons why they should be granted. If the materials in support of the warrant application were insufficient, judges could request further information, and their decisions in such cases were usually well reasoned. The possibility for communications service providers to refuse access to data retained by them if the necessary prerequisites were absent was an additional safeguard against abuse. 392. There were also clear rules on the destruction of retained data, and the judge who had issued an access warrant had to be informed of that destruction. The whole process was moreover overseen by the Commission for Protection of Personal Data and the special parliamentary committee. 393. Lastly, as regards notification arrangements and remedies, the Government referred to their submissions on the applicants’ victim status (see paragraph 363 above). (b) The Court’s assessment (i) General principles 394. In view of the technological and social developments in the past two decades in the sphere of electronic communications, communications data can nowadays reveal a great deal of personal information. If obtained by the authorities in bulk, such data can be used to paint an intimate picture of a person through the mapping of social networks, location tracking, Internet browsing tracking, mapping of communication patterns, and insight into who that person has interacted with (see Centrum för rättvisa, § 256, and Big Brother Watch and Others, § 342, both cited above). The acquisition of that data through bulk interception can therefore be just as intrusive as the bulk acquisition of the content of communications, which is why their interception, retention and search by the authorities must be analysed by reference to the same safeguards as those applicable to content (see Centrum för rättvisa, § 277, and Big Brother Watch and Others, § 363, both cited above). 395. Here, it must be added that by the same token, the general retention of communications data by communications service providers and its access by the authorities in individual cases must be accompanied, mutatis mutandis, by the same safeguards as secret surveillance (see paragraphs 291 to 293 above). (ii) Application of those principles (α) Accessibility of the law 396. All statutory provisions governing the retention of communications data and its accessing by the authorities have been officially published and are thus accessible to the public. (β) Protection of retained data by communications service providers 397. Bulgarian law expressly requires that communications service providers store and process retained communications data in line with the rules governing the protection of personal data, and that various technical and organisational safeguards be put in place to ensure that such data is not unduly accessed, disclosed or altered, and that it is destroyed when the statutory period for its retention expires (see paragraphs 164 to 166 above). (γ) Grounds on which retained data can be accessed by the authorities 398. In Bulgaria, the law sets outs in an exhaustive manner the grounds on which the authorities may seek access to retained communications data: protecting national security; preventing, detecting or investigating serious criminal offences; tracing people finally sentenced to imprisonment with respect to such offences; tracing people who have fallen or could fall into a situation which puts their life or health at risk; and (only as concerns location data) carrying out search-and-rescue operations with respect to people in distress (see paragraph 163 above). The law is thus sufficiently clear on that point. As noted in paragraph 301 above in relation to secret surveillance, the mere fact that one of the grounds for accessing retained communications data is “national security” is not in itself contrary to Article 8 of the Convention. 399. It must also be noted in this connection that when in 2020 the Bulgarian Parliament broadened the possible grounds for acquiring retained communications data to include enforcement of isolation and quarantine measures in connection with infectious diseases, the Constitutional Court struck down the amendment as a whole, on the basis that it disproportionately interfered with the constitutional right to privacy (see paragraphs 158 and 159 above). (δ) Procedure for obtaining access ‒ Standard procedure 400. Bulgarian law lays down safeguards intended to ensure that retained communications data is accessed by the authorities only when that is justified. First, only a limited number of authorities can seek access to that data, within the spheres of their respective competencies (see paragraphs 167 to 169 above). More importantly, such access can be granted only by the competent court president or by a judge to whom that power has been delegated (for access requested outside the framework of already pending criminal proceedings), or by a judge of the competent first-instance court (for access requested by a public prosecutor in the course of criminal proceedings) (see paragraphs 173 to 177 above). 401. Those safeguards nonetheless fall short of the requisite standard of effectiveness in several respects. 402. Access applications made outside the framework of already pending criminal proceedings must set out not only the grounds for seeking access to such data and the purpose for which it is being sought, but also contain a full account of the circumstances which show that the data is needed for a relevant purpose (see paragraph 171 above). By contrast, access applications made in the course of criminal proceedings, although expected to feature information about the alleged offence in connection with which access is being sought, are not expressly required to explain, in terms, why the data at issue is truly needed – they only have to contain a description of the circumstances underlying the access application, which appears to be an altogether looser requirement (see paragraph 172 above). The law does not therefore make it plain in all situations that access in each individual case can be sought and granted only if the resulting interference with the Article 8 rights of the person(s) concerned would be truly necessary and proportionate. 403. As with the procedure for authorising secret surveillance (see paragraph 309 in fine above), a further possible shortcoming at that stage is that although data-access proceedings must of necessity be conducted without notice to the persons whose communications data is being sought, the authority seeking access is under no duty to disclose to the judge fully and frankly all matters relevant to the well-foundedness of its access application, including matters which may weaken its case. 404. The law does not require that supporting materials be enclosed with the access application either, which can in many cases prevent the judge who deals with the application from properly checking whether it is well ‑ founded. 405. Nor does the law require judges examining such applications to give reasons explaining why they have decided that granting access to the communications data at issue was truly necessary (see paragraphs 179 and 180 above). As already noted in relation to the procedure for authorising secret surveillance (see paragraph 313 above), the provision of reasons, even if succinct, is the only way of ensuring that the judge examining an access application has properly reviewed the application and the materials which support it, and has truly directed his or her mind to the questions whether accessing the communications data at issue would be a justified and proportionate interference with the Article 8 rights of the person(s) whose data is being accessed, and any person(s) likely to be collaterally affected by that. 406. It follows that the procedures for authorising the authorities to access retained communications data do not effectively guarantee that such access is granted only when genuinely necessary and proportionate in each case. ‒ Urgent procedure 407. By contrast, it does not appear that a discrete issue arises with regard to the urgent procedure, under which the authorities may access retained communications data without a prior judicial warrant if there is an immediate danger that a terrorist offence will be committed (see paragraph 183 above). When the authorities resort to that urgent procedure, the competent judge must within twenty-four hours assess and approve retrospectively the need for them to have done so; otherwise any data made available pursuant to the direct-access request must be destroyed by the authority which has received it (see paragraphs 184 and 185 above). Moreover, that urgent procedure is apparently used sparingly (see paragraph 186 above, and compare it with the table under paragraph 182 above). (ε) Amount of time for which the authorities may store and use accessed data not subsequently used in criminal proceedings 408. The 2007 Act says that any communications data not used to open criminal proceedings must be destroyed within three months of its receipt by the authorities, and that any data accessed under the urgent procedure must be immediately destroyed in the same way if resort to that urgent procedure has not been retrospectively validated by the competent judge (see paragraphs 194 and 195 above). By contrast, no such time-limit has been laid down in relation to data accessed in the course of criminal proceedings. Although the point seems to be covered by internal rules issued by the Chief Prosecutor, those have not been made accessible to the public and it is unclear what they say (see paragraph 196 above). Nothing suggests that the provisions of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 219 above), have so far been used to fill that lacuna. (στ) Procedures for storing, accessing, examining, using, communicating and destroying data accessed by the authorities 409. The 2007 Act and the Code of Criminal Procedure say nothing about the procedures for storing, accessing, examining, using, communicating and destroying communications data accessed by the authorities, and those points are not specifically covered by the rules governing prosecutorial and judicial case files either (see paragraph 193 above). It appears that such data is simply kept in the criminal case file, follows its fate, and can be accessed by anyone who can access the case file itself (ibid.). It cannot be accepted that this provides an appropriate level of protection for data which may sometimes concern intimate aspects of someone’s private life or otherwise permit a disproportionate invasion into the privacy of the people concerned or in the “correspondence” of the legal persons concerned. Here also, nothing suggests that the provisions of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 219 above), have so far been used to fill that lacuna. (ζ) Oversight arrangements 410. In Bulgaria, three authorities can oversee the retention of communications data and its subsequent accessing by the authorities: (a) the Commission for Protection of Personal Data; (b) the judge who has issued the access warrant; and (c) the same parliamentary committee which oversees secret surveillance (see paragraphs 197 to 210 above). 411. Under the 2007 Act, the Commission for Protection of Personal Data may (a) request communications service providers to provide it with any information relevant to its mandate in that domain, (b) check how those providers comply with their duties to communicate personal data breaches to users, and (c) check the technical and organisational measures taken by those providers to store retained communications data (see paragraphs 201 and 202 above). It may also give binding instructions to communications service providers and sanction them (see paragraphs 203 and 204 above). But its mandate under the 2007 Act appears to be limited to overseeing communications service providers (see paragraph 198 above); it has no express powers under that Act with respect to the authorities which can access retained communications data. 412. It is true that under the provisions of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680, the same Commission – as well as the Inspectorate attached to the Supreme Judicial Council – are tasked with supervising the way in which the authorities process any personal data for law-enforcement purposes (see paragraph 225 above). But nothing suggests that either of those two authorities has so far availed itself of those powers in relation to communications data. 413. For his or her part, the judge who has issued the access warrant is not in a position to ensure effective oversight. Granted, he or she must be informed of the destruction of irrelevant or unhelpful communications data accessed by the authorities (see paragraph 197 above). But that judge has no power to order remedial measures. He or she is, moreover, not empowered or expected to carry out on-site inspections, and performs his or her supervisory duties solely on the basis of the report submitted by the authorities. Although a valuable safeguard, that mechanism is insufficient to ensure that data-accessing powers are not being abused. 414. The main supervisory body, the special parliamentary committee, can oversee both communications service providers and the relevant authorities (see paragraph 205 above), and has extensive information-gathering and inspection powers (see paragraph 207 above). Its annual reports demonstrate that it regularly carries out inspections via the experts it employs (see paragraphs 208 to 210 above). But several shortcomings undermine its effectiveness. First, its members need not be persons with legal qualifications or experience (see paragraph 206 above). Secondly, it has no power to order remedial measures in concrete cases, such as the destruction of retained or accessed communications data; it can only give instructions designed to improve the relevant procedures (see paragraph 211 above). If it detects irregularities, it can only bring the matter to the attention of the prosecuting authorities, or inform the heads of the relevant access-requesting authorities and communications service providers (see paragraph 212 above). 415. In view of the shortcomings outlined above, the system of overseeing the retention of communications data and its subsequent accessing by the authorities in Bulgaria, as currently organised, does not appear capable of providing effective guarantees against abusive practices in this respect. (η) Notification 416. The 2007 Act requires the special parliamentary committee to notify an individual if his or her retained communications data has been accessed or sought to be accessed unlawfully, if such notification would not defeat the purpose for which those data has been accessed (see paragraph 213 above). However, as noted in paragraph 349 above in relation to secret surveillance, under the Court’s case-law such notification is required in all cases, not only those in which the data has been accessed unlawfully, as soon as the notification can be made without jeopardising the purpose of the measure. 417. Nothing suggests that such notification has so far been made by virtue of section 54(4) of the 2002 Act, as amended in 2019 to transpose Directive (EU) 2016/680 (see paragraph 220 above). Nor does it appear that there have so far been any instances in which people have been able to obtain information about the retention or accessing of their communications data under section 37a, section 55(3) in fine, section 56(6) in fine or section 57(1) and (2) of the same Act, as worded after the 2019 amendment (see paragraphs 217, 221 and 224 above). The Government were vague on the point, contenting themselves to say that the amendment had introduced provisions enabling individuals to obtain such information in respect of retained and accessed communications data (see paragraph 363 above, and contrast the circumstances in Ringler, cited above, §§ 12-13 and 51-54). In the absence of further particulars about the actual operation of those data-protection provisions with respect to retained communications data, it cannot be accepted that they are currently effective in that respect. Moreover, those information rights are not available to legal persons (see paragraphs 216, 234 and 239 above). (θ) Remedies 418. As already noted in paragraphs 379 to 381 above, it has not been shown that an effective remedy exists in Bulgaria in respect of the retention and accessing of communications data. The Government’s objection that the applicants have not exhausted domestic remedies in that respect, which was joined to the merits (see paragraph 368 above), must therefore be rejected. (ι) Conclusion 419. Although the laws governing the retention of communications data and its subsequent accessing by the authorities were significantly improved after the Constitutional Court examined them in 2015 in the wake of the CJEU’s judgment in Digital Rights Ireland and Others (see paragraph 156 above), those laws, as applied in practice, still fall short of the minimum safeguards against arbitrariness and abuse required under Article 8 of the Convention in the following respects: (a) the authorisation procedure does not appear capable of ensuring that retained communications data is accessed by the authorities solely when that is “necessary in a democratic society” (see paragraphs 400 to 406 above); (b) no clear time-limits have been laid down for destroying data accessed by the authorities in the course of criminal proceedings (see paragraph 408 above); (c) no publicly available rules exist on the storing, accessing, examining, using, communicating and destroying communications data accessed by the authorities (see paragraph 409 above); (d) the oversight system, as currently organised, does not appear capable of effectively checking abuse (see paragraphs 410 to 415 above); (e) the notification arrangements, as currently operating, are too narrow (see paragraphs 416 and 417 above); and (f) it does not appear that there is an effective remedy (see paragraphs 379 to 381 and 418 above). 420. It follows that those laws do not fully meet the “quality of law” requirement and are incapable of keeping the “interference” entailed by the system of retention and accessing of communications data in Bulgaria to what is “necessary in a democratic society”. 421. There has therefore been a breach of Article 8 of the Convention in this respect as well. APPLICATION OF ARTICLE 41 OF THE CONVENTION 422. 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.” DamageThe applicants’ claims and the Government’s comments on them The applicants’ claims and the Government’s comments on them The applicants’ claims and the Government’s comments on them 423. The first and second applicants claimed 5,000 euros (EUR) each in respect of the alleged frustration and disappointment flowing from the defects marring the secret surveillance system in Bulgaria, which had been illustrated by many scandals revealing cases of unlawful and abusive surveillance. 424. The third and fourth applicants claimed an unspecified sum in respect of the non-pecuniary damage allegedly suffered by them owing to the breach of their privacy rights resulting from the incompatibility of the laws governing secret surveillance and the retention and accessing of communications data with the requirements of the Convention. 425. The Government contested the claims in full, noting that in previous such cases nothing had been awarded in respect of non-pecuniary damage. The Court’s assessment 426. The findings of violation amount to sufficient just satisfaction for any non-pecuniary damage suffered by the applicants as a result of the two breaches of Article 8 of the Convention found in this case (see Roman Zakharov, § 312, and Centrum för rättvisa, §§ 379-80, both cited above). 427. That said, under Article 46 a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State an obligation to choose, 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 end the violation and make all feasible reparation for its consequences in a way to restore as far as possible the situation which would have obtained if it had not taken place. Moreover, it follows from the Convention, and from Article 1 in particular, that in ratifying it the Contracting States undertook to ensure that their domestic laws would be compatible with it (see Roman Zakharov, cited above, § 311). 428. In this case, as far as secret surveillance is concerned, these general measures will have to supplement those which the Bulgarian authorities have already taken to execute Association for European Integration and Human Rights and Ekimdzhiev (cited above). Costs and expensesThe applicants’ claims and the Government’s comments on them The applicants’ claims and the Government’s comments on them The applicants’ claims and the Government’s comments on them 429. The first and second applicants did not seek reimbursement of any lawyers’ fees, saying that their representatives had worked on the case for free. They did, however, jointly seek reimbursement of BGN 1,032 incurred for the translation of their submissions into English, and BGN 25.50 in postage. They requested that any award in that respect be made payable to Ekimdzhiev and Partners, the law firm in which their representatives worked. In support of their claims, they submitted two contracts for translation services and postal receipts. 430. The third and fourth applicants sought reimbursement of EUR 2,750 in lawyers’ fees incurred for their representation before the Court by, respectively, Mr A.A. Kashamov (EUR 750) and Mr A.E. Kashamov (EUR 2,000). In support of those claims, they submitted contracts for legal services between, respectively, the Access to Information Foundation and Mr A.E. Kashamov and between Mr A.E. Kashamov and Mr A.A. Kashamov, time-sheets and receipts. 431. The Government contested the quantum of the first and second applicants’ claim for translation expenses, and the third and fourth applicants’ claim for lawyers’ fees. In their view, those were both exorbitant. The Court’s assessment 432. According to the Court’s case-law, applicants are entitled to the reimbursement of their costs and expenses, but only to the extent that these were actually and necessarily incurred and are reasonable as to quantum. 433. In this case, there is no reason to suspect that the translations costs and postage claimed by the first and second applicants (see paragraph 429 above) have not been actually incurred by them. In view of the volume of those applicants’ submissions, the translation costs can also be seen as necessary and reasonable as to quantum. They must hence be awarded in full. Converted into euros, those sums come respectively to EUR 527.65 and EUR 13.04, which gives EUR 540.69 in total. To them should be added any tax that may be chargeable to those applicants. As requested by them, the sums are to be paid into the bank account of Ekimdzhiev and Partners, the law firm in which their representatives work. 434. In view of the complexity of the issues raised by the case, the legal fees claimed by the third and fourth applicants (see paragraph 430 above) can likewise be accepted as necessary and reasonable as to quantum. They must therefore be awarded in full, net of any tax that may be chargeable to those applicants. Default interest 435. 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, in respect of secret surveillance, finding that the relevant legislation governing secret surveillance, especially as applied in practice, did not meet the quality-of-law requirement of the Convention and was unable to keep surveillance to only that which was necessary. It also held that there had been a violation of Article 8, in respect of retention and accessing of communication data, finding that, as the laws governing retention and accessing communications data did not meet the quality-of-law requirement of the Convention, they were incapable of limiting such retention and accessing to what was necessary. Moreover, in this judgment, the Court emphasised that pursuant to Article 46 (binding force and execution of judgments) of the Convention, a State party had to make the necessary changes to domestic law to end the violation and restore as far as possible the situation which would have obtained if it had not taken place, and to ensure its laws were compatible with the Convention. In the present case, the measures would have to supplement those which the Bulgarian authorities had already taken to implement the judgment Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria of 28 June 2007. |
721 | Right to liberty and security (Article 5 of the Convention) | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 28. The relevant provision of the Spanish Constitution reads as follows: Article 17 “ Everyone has the right to liberty and security. No one may be deprived of his liberty other than in accordance with the provisions of this Article and in the circumstances and form provided by law. ” 29. The relevant provisions of the Criminal Code in force at the material time stipulated as follows: Article 92 “Notwithstanding the provisions of the preceding Articles, convicted persons who have reached the age of 70 or who reach that age while serving their sentence, and who satisfy the requirements laid down [by the law], with the exception of the requirement to have served three quarters or, where appropriate, two thirds of [the sentence], may be granted conditional release. ...” Article 325 “Any person who ... causes or produces, directly or indirectly, emissions, discharges ... into ... inland or maritime waters or groundwater ... likely to severely upset the balance of natural systems, shall be liable to a term of imprisonment of between six months and four years, a day-fine payable for between eight and twenty ‑ four months and a prohibition of between one and three years on carrying out his or her occupation. Where there is a risk to persons ’ health the term of imprisonment shall be in the upper half of the range.” Article 326 “The commission of any of the acts described in the previous Article shall entail a more severe sentence when accompanied by: a. illegal operation of an industrial or other activity using facilities which have not obtained the necessary administrative authorisation or approval; or b. failure to comply with the express instructions of the administrative authority aimed at remedying or putting an end to the activities referred to in the previous Article; or c. falsification or concealment of information on the environmental implications of the activities in question; or d. hampering of the administrative authorities ’ inspection activities; or e. a risk of irreversible or catastrophic damage; or f. illegal pumping of water while restrictions are in place.” Article 331 “The penalty imposed for an offence referred to in this Chapter shall be in the lower half of the range where the offence was the result of gross negligence.” 30. The second paragraph of Article 325 of the Criminal Code, as amended in November 2003, provides: Article 325 “2. Persons who knowingly release, discharge or introduce ionising radiation or other substances into the air, soil or maritime waters ... in quantities such as to cause death or illness ... with irreversible effects, shall be liable to a term of imprisonment of between two and four years in addition to the penalty for causing personal injury.” 31. The relevant provision of the Code of Criminal Procedure reads as follows: Article 531 “In determining the nature and amount of the security, consideration should be given to the nature of the offence, the social circumstances of the accused and any previous convictions, together with any other circumstance which may increase or reduce the incentive to evade justice.” 32. The Environmental Liability Act (Law no. 26/2007 of 23 October 2007) regulates operators ’ responsibility to prevent and remedy environmental damage in accordance with Article 45 of the Constitution and the precautionary and “polluter pays” principles. B. Protection of the marine environment 33. An increasing tendency has been observed at European level to use the criminal law as a means of enforcing the environmental obligations imposed by European Union law. 1. Council of Europe instruments 34. In 1998 the Council of Europe opened for signature the Convention on the Protection of the Environment through Criminal Law ( ETS No. 172 ). To date, however, only thirteen States have signed the Convention and Estonia is the only country to have ratified it. The text includes the following provisions: Article 2 – Intentional offences “ 1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law: a. the discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which: ( i ) causes death or serious injury to any person, or ( ii ) creates a significant risk of causing death or serious injury to any person; b. the unlawful discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which causes or is likely to cause their lasting deterioration or death or serious injury to any person or substantial damage to protected monuments, other protected objects, property, animals or plants; c. the unlawful disposal, treatment, storage, transport, export or import of hazardous waste which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants; d. the unlawful operation of a plant in which a dangerous activity is carried out and which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants; e. the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants, when committed intentionally. 2. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law aiding or abetting the commission of any of the offences established in accordance with paragraph 1 of this Article. ” Article 3 – Negligent offences “ 1. Each Party shall adopt such appropriate measures as may be necessary to establish as criminal offences under its domestic law, when committed with negligence, the offences enumerated in Article 2, paragraph 1 a to e. 2. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall only apply to offences which were committed with gross negligence. 3. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that paragraph 1 of this Article, in part or in whole, shall not apply to: – sub - paragraph 1. a. ii. of Article 2, – sub - paragraph 1. b. of Article 2, in so far as the offence relates to protected monuments, to other protected objects or to property.” Article 6 – Sanctions for environmental offences “ Each Party shall adopt, in accordance with the relevant international instruments, such appropriate measures as may be necessary to enable it to make the offences established in accordance with Articles 2 and 3 punishable by criminal sanctions which take into account the serious nature of these offences. The sanctions available shall include imprisonment and pecuniary sanctions and may include reinstatement of the environment. ” 35. In its report on sea pollution of 30 March 2005, the Committee on the Environment, Agriculture and Local and Regional Affairs of the Parliamentary Assembly of the Council of Europe stated as follows: “ ... 2. In the sphere of penalties 167. Four lines of thought must be pursued: ( a) The excessively absolute principle of freedom of navigation must be revised, as it is no longer appropriate in the context of present-day transport flows. Legally speaking, this would open the way for passive control and ultimately active control, at least in zones subject to risk. The issue of the responsibilities of control bodies could be considered at the same time. ( b) A State which has suffered pollution damage caused by a ship must be able to demand reparation from the State whose flag that ship flies where it is established that the damage results completely or partly from the flag State ’ s failure to exercise any effective monitoring of the vessel causing the damage. ( c) Article 230 of the Convention on the Law of the Sea must be amended to make clearer the possibility of penalties of imprisonment for the most serious pollution offences. ( d) An international maritime criminal court must be set up. In the same way that the notion of crimes against humanity finally yielded the creation of the International Criminal Court, it cannot be excluded in the future that states may eventually enshrine the notion of ‘ crime against the environment ’, drawing the consequences, in legal terms, of the idea put forward by some of establishing the sea as the common heritage of humanity.” 2. European Union developments 36. The issue of environmental crime has also been debated for many years within the European Union. 37. In its judgment, the Chamber referred to Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollution and on the introduction of penalties for infringements, which makes ship-source discharges in breach of Community law a criminal offence. The Directive further requires that both criminal and administrative penalties be imposed if the persons concerned are found to have committed or participated in the act with intent or as a result of negligent behaviour. The Directive, adopted in response to the sinking of the Erika and of the Prestige, specifically provides that the member States must implement it by 1 March 2007. It was therefore not intended to apply to events having occurred prior to that date. 38. In any event, Directive 2005/35/EC applies to discharges occurring, inter alia, in the exclusive economic zone or equivalent zone of a Member State, from any ship with the exception of any warship, naval auxiliary or other ship owned or operated by a State and used at the material time only on government non-commercial service. The member States must take the necessary measures to ensure that infringements are subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties. 39. In its judgment of 3 June 2008 in Case C-308/ 06 Intertanko and Others, the Court of Justice of the European Communities (“the ECJ ”), having been called upon to examine a challenge to the validity of Directive 2005/35/EC, found that the concept of “serious negligence” provided for in many national legal systems could only refer to a patent breach of a duty of care (paragraph 76 of the judgment). The ECJ further held that “serious negligence” within the meaning of the Directive should be understood as entailing an unintentional act or omission by which the person responsible committed a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation (paragraph 77). 40. In the wake of the ECJ judgments of 13 September 2005 and 23 October 2007, which annulled respectively Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law and Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, which supplements Directive 2005/35/EC (referred to in the Chamber judgment), the Commission put forward a proposal for a directive on the protection of the environment through criminal law. The European Union legislative process culminated in the adoption of Directive 2008/99/EC. Recital 3 in the preamble to the Directive states that the availability of criminal penalties demonstrates social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. It also makes an explicit link between the need for criminal penalties and past experience in the field of environmental protection. 41. The Directive in question requires Member States to treat as criminal offences certain activities that breach European Union environmental legislation, including: ( i ) unlawful shipment of waste; (ii) trade in endangered species or in ozone-depleting substances; (iii) conduct causing significant deterioration of a habitat within a protected site; (iv) significant damage to the environment caused by the treatment, disposal, storage, transport, export or import of hazardous waste (including oil and gas, waste oils, sewage sludge, metals or electrical or electronic waste); and (v) significant damage to the environment caused by the unlawful discharge of materials or ionising radiation. 42. Member States are required to subject these offences to effective, proportionate and dissuasive criminal penalties and to ensure that companies can be held liable for offences carried out by individuals on their behalf. 43. For its part, Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage is aimed at establishing a framework of environmental liability based on the “polluter pays” principle, with a view to preventing and remedying environmental damage. C. Vessels and crews in international law 1. United Nations Convention on the Law of the Sea (UNCLOS) of 10 December 1982 44. The relevant Articles of this Convention, which was ratified by Spain on 15 January 1997, read as follows: Article 220 Enforcement by coastal States “... 3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred. ... 6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. 7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organisation or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed. ...” Article 221 Measures to avoid pollution arising from maritime casualties “1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. 2. For the purposes of this Article, ‘ maritime casualty ’ means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo.” Article 227 Non-discrimination with respect to foreign vessels “In exercising their rights and performing their duties under this Part, States shall not discriminate in form or in fact against vessels of any other State.” Article 230 Monetary penalties and the observance of recognised rights of the accused “1. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels beyond the territorial sea. 2. Monetary penalties only may be imposed with respect to violations of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful and serious act of pollution in the territorial sea. 3. In the conduct of proceedings in respect of such violations committed by a foreign vessel which may result in the imposition of penalties, recognised rights of the accused shall be observed.” 45. With regard to detention of seafarers and their release, UNCLOS provides: Article 73 Enforcement of laws and regulations of the coastal State “1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed.” Article 292 Prompt release of vessels and crews “1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. 2. The application for release may be made only by or on behalf of the flag State of the vessel. 3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time. 4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.” 2. Case-law of the International Tribunal for the Law of the Sea 46. The provisions concerning detention and release of vessels and crews have been interpreted by the International Tribunal for the Law of the Sea ( “ the Tribunal ” ). In doing so, the Tribunal has laid down a number of criteria in order to determine what constitutes a reasonable bond within the meaning of Article 73 of UNCLOS taken in conjunction with Article 292 of that Convention. Hence, it is interesting to examine the approach taken by the Tribunal in cases relating to the detention of a foreign national by the coastal State and the fixing of the amount of bail. However, it should be borne in mind, firstly, that the Tribunal, unlike the Court, is tasked with striking a balance between the competing interests of two States rather than the interests of an individual and those of a State. Secondly, the issues brought before the Tribunal concern the detention and release of both crews and vessels. Thirdly, unlike the instant case, which is about an environmental disaster, the vast majority of cases before the Tribunal concern fisheries - related violations. In its judgment of 6 August 2007 in the case of Hoshinmaru ( Japan v. the Russian Federation ), the Tribunal summarised the principles it applies in deciding what constitutes a reasonable bond. The relevant extracts reads as follows: “82. The Tribunal has expressed its views on the reasonableness of the bond in a number of its judgments. In the Camouco case it stated: ‘ the Tribunal considers that a number of factors are relevant in an assessment of the reasonableness of bonds or other financial security. They include the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form ’ ( ITLOS Reports 2000, p. 10, at p. 31, para. 67). In the Monte Confurco case it added that: ‘ This is by no means a complete list of factors. Nor does the Tribunal intend to lay down rigid rules as to the exact weight to be attached to each of them ’ ( ITLOS Reports 2000, p. 86, at p. 109, para. 76). In the Volga case it stated that: ‘ In assessing the reasonableness of the bond or other security, due account must be taken of the terms of the bond or security set by the detaining State, having regard to all the circumstances of the particular case ’ ( ITLOS Reports 2002, p. 10, at p. 32, para. 65). In the Juno Trader case the Tribunal further declared: ‘ [t ] he assessment of the relevant factors must be an objective one, taking into account all information provided to the Tribunal by the parties ’ ( ITLOS Reports 2004, p. 17, at p. 41, para. 85). ... 89. The proceedings under Article 292 of [UNCLOS], as clearly provided in paragraph 3 thereof, can deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. Nevertheless, in the proceedings before it, the Tribunal is not prevented from examining the facts and circumstances of the case to the extent necessary for a proper appreciation of the reasonableness of the bond as set by the Respondent ( Monte Confurco, ITLOS Reports 2000, p. 86, at pp. 108-109, para. 74). However, the Tribunal wishes to emphasise that in so doing it is by no means acting as a court of appeal ( Monte Confurco, ITLOS Reports 2000, p. 86, at p. 108, para. 72). ” 47. It is clear from the foregoing that, in assessing the reasonableness of the bond, the Tribunal takes three factors into consideration: ( i ) the gravity of the alleged offences; (ii) the penalties imposed or imposable under the laws of the detaining State in so far as they are reasonably proportionate to the gravity of the alleged offences; and (iii) the value of the detained vessel and of the cargo seized. In doing so, the Tribunal is mindful of its duty not to prejudice the merits of the case, which are decided domestically. However, the Tribunal considers that it is not prevented from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond. 3. The Baltic and International Maritime Council ( BIMCO ) report of 23 March 2009 48. BIMCO is an independent shipping association with a membership composed of shipowners, managers, brokers, agents and many other stakeholders with vested interests in the shipping industry. BIMCO is one of the third-party interveners in the present case. On 23 March 2009 BIMCO published a report on the treatment of seafarers which is interesting in several respects. 49. Firstly, the report identifies fourteen cases where sanctions were taken against the seafarers involved before any deliberate act or negligence had been admitted or proven in court. The period examined runs for eleven years from 1996 until 2007 and the cases dealt with – which include the Mangouras (or Prestige ) case – involve twelve coastal States. The report concludes that: ( i ) the use of criminal sanctions against seafarers is a worldwide phenomenon, by no means restricted to particular countries or regions; (ii) although the rules are fair, their application is unjust, often flying in the face of the presumption of innocence; and (iii) while there are relatively few cases, the issues involved clearly illustrate that there are continuing problems with respect to the unfair treatment of seafarers. 50. Secondly, the report examines a range of instruments in connection with the treatment of seafarers, including international conventions, the Universal Declaration of Human Rights and a number of regional and national instruments. In the last category, particular attention is given to the European Union legal framework and to the law in France, the United States of America, Canada and the United Kingdom. In its conclusions, BIMCO observes that the test generally applied in those instruments is gross negligence, with punishment ranging from fines to imprisonment. 51. Finally, this report was examined by the Legal Committee of the International Maritime Organization (IMO) at its 95th session from 30 March to 3 April 2009. As regards the fair treatment of seafarers, the minutes of the Legal Committee record the following : “ The Committee agreed that the Guidelines on Fair Treatment of Seafarers in the event of a maritime accident, adopted by the Legal Committee, and the Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident, adopted by IMO ’ s Maritime Safety Committee, should be strictly applied by States so that a proper balance could be achieved between the need, on the one hand, for a thorough investigation of maritime accidents and, on the other hand, the protection of the rights of seafarers. Many delegates noted that the issue of fair treatment of seafarers was the direct responsibility of port, coastal and flag States, the State of the nationality of the seafarers, shipowners, and seafarers. States were obliged to treat seafarers fairly, pursuant to the Universal Declaration of Human Rights and regional human rights instruments, as well as under national law. There was also a consensus that States should comply with the Guidelines on Fair Treatment of Seafarers adopted by the Legal Committee.” 52. The Guidelines on Fair Treatment of Seafarers are attached to the observations of the third-party interveners in the present case. D. International Convention for the Prevention of Pollution from Ships of 2 November 1973 and the Protocol thereto adopted on 17 February 1978 ( MARPOL 73/78 ) 53. This Convention which, together with the Protocol thereto, was ratified by Spain on 6 July 1984, has been amended on several occasions, most recently in July 2007 (entry into force December 2008). Annex I to the Convention relates to the prevention of pollution by oil following collision or stranding. The Convention, which is a combination of two treaties adopted in 1973 and 1978, constitutes the main instrument covering prevention of pollution of the marine environment by ships from operational or accidental causes. E. Civil liability and compensation for oil pollution damage 1. 1992 International Convention on Civil Liability for Oil Pollution Damage (“ the CLC 1992”) 54. This Convention governs the liability of shipowners for oil pollution damage. It sets up a system of strict liability for shipowners and a system of compulsory liability insurance. The shipowner is normally entitled to limit his liability to an amount which is linked to the tonnage of his ship. Article III “1. Except as provided in paragraphs 2 and 3 of this Article, the owner of a ship at the time of an incident, or, where the incident consists of a series of occurrences, at the time of the first such occurrence, shall be liable for any pollution damage caused by the ship as a result of the incident. ... 4. No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against: (a) the servants or agents of the owner or the members of the crew; (b) the pilot or any other person who, without being a member of the crew, performs services for the ship; ... unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. ...” Article V “ ... 2. The owner shall not be entitled to limit his liability under this Convention if it is proved that the pollution damage resulted from his personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. ...” 2. The London P&I Rules 55. The Protection and Indemnity Clubs were set up by shipowners themselves to provide cover against various risks including those arising out of pollution caused by their vessels. They are governed by general conditions (the London P&I Rules), the relevant parts of which read as follows: 9.28 – Omnibus Rule “9.28.1 Liabilities, losses, costs and expenses incidental to the business of owning, operating or managing Ships which and to such extent as the Committee in its sole discretion shall consider fall within the scope of this Class, 9.28. 1.1 PROVIDED that there shall be no recovery which is expressly excluded by other provisions of these Rules, save to the extent that those members of the Committee present when the claim is being considered are unanimous that such exclusion should be over-ridden in the particular circumstances of the case.” Rule 20 – Bail “ 20.1 The Association may, but shall in no case be obliged to, provide on behalf of an Assured security to prevent arrest or obtain release from arrest or otherwise in respect of an entered Ship and if it does such Assured shall upon first demand made at any time by the Association in writing arrange such counter-security (which expression may in the Association ’ s sole discretion include a deposit of cash with the Association) as the Association may require and (with or without such counter-security having been required or arranged) shall indemnify the Association against all liabilities and expenses incurred by the Association in consequence of the security originally provided by the Association. In the event that the Assured does not arrange such counter-security as may have been required or does not indemnify the Association as aforesaid, the Association, without prejudice to its other rights, shall be entitled to retain any amounts which would otherwise be recoverable by such Assured, notwithstanding that the same may have no connection with the liability in respect of which the original security was provided and may relate to other periods of cover before or after that liability was incurred by the Assured or to another entered Ship. The provision of security by the Association shall be without prejudice to the Association ’ s liability to the Assured for the claim in question.” THE LAW ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 56. The applicant complained about the amount set for bail by the Spanish authorities, which he considered disproportionate. He submitted that the authorities had not taken into account his personal situation (profession, income, assets, previous convictions, family circumstances and so forth) in deciding on the amount. The applicant relied on Article 5 § 3 of the Convention which, in its relevant part, provides: “Everyone arrested or detained in accordance with the provisions of paragraph 1 ( c ) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The Chamber ’ s conclusions 57. The Chamber found that account had to be taken of the particular circumstances of the case which distinguished it from other cases in which the Court had had occasion to rule on the length of pre-trial detention. It took the view that the seriousness of the environmental disaster justified the domestic courts ’ concern to determine who had been responsible and that, accordingly, it had been reasonable for them to seek to ensure that the applicant would appear for trial by fixing a high level of bail. It considered that the domestic authorities had demonstrated that the amount required from the applicant by way of bail had been proportionate and that they had taken sufficient account of his personal circumstances, and in particular his status as an employee of the shipowner, which had taken out insurance to cover this type of risk. The Chamber therefore concluded that the amount of bail, although high, had not been disproportionate in view of the legal interest being protected, the seriousness of the offence in question and the disastrous environmental and economic consequences of the oil spill. Accordingly, it held that there had been no violation of Article 5 § 3 of the Convention. B. The parties ’ submissions and the third-party interveners ’ observations 1. The applicant ’ s submissions 58. The applicant argued that, in confining their attention to the seriousness of the offences in question and the severity of the likely sentence, the public outcry caused by the oil spill and the fact that he was a Greek national whose permanent residence was abroad and who had no ties with Spain, the domestic courts had taken insufficient account of his personal and financial situation, his income, the fact that he had no previous convictions, his family circumstances and his age. On the last point, he submitted that he had been 67 years old on 17 November 2002 and that the Spanish Criminal Code exempted persons over the age of 70 from serving custodial sentences (see paragraph 29 above). 59. In the applicant ’ s submission, the Chamber had incorrectly stated that bail had been paid under the terms of the contract between the Prestige ’ s owner and the latter ’ s insurers, despite affirming in paragraph 32 of the judgment that the London Steamship Owners ’ Mutual Insurance Association Limited (“the London P&I Club ”) had put up bail as “a spontaneous, one-off humanitarian gesture”. The applicant maintained that it was not permissible for the domestic courts to fix bail by reference to the financial situation of a third party in the absence of any offer from that party. While the domestic courts may have assumed that the ship ’ s owner or the insurers would put up bail, he had spent eighty-three days in detention. Allowing the domestic courts to fix the level of bail on the basis of the financial situation of a third party was tantamount to rendering the Court ’ s previous rulings ineffective, not to say meaningless. 60. Arguing that the contractual relationship between the shipowner and the insurers of the Prestige was governed by the London P&I Rules (see paragraph 55 above), the applicant submitted that these rules obliged the insurer to put up a security only if a vessel insured by it was detained and not if a member of the crew was arrested (Rule 20). In the latter case, the insurer could pay the bail, but was by no means legally required to do so. Cover against certain shipping-related risks was left to the discretion of the insurer. The applicant referred in that regard to Rule 9.28 of the London P&I Rules (see paragraph 55 above), which the London P&I Club had apparently agreed to apply – in view of the exceptional nature of the situation – in order to pay the bail and secure the applicant ’ s release after eighty-three days in detention. He pointed out that, in any event, while the insurance contract had been binding on his employer and the ship ’ s insurer, he had not taken out any personal insurance with the London P&I Club, which had no obligations towards him. In giving reasons for the level of bail, the domestic courts had not stated that the company which insured the applicant ’ s employer had been obliged to put up bail, or that they expected it to do so. In the applicant ’ s submission, the appeal courts were not required to read the decisions of the lower courts in the light of new arguments not referred to by the latter. Referring to Articles III § 4 and V § 2 of the 1992 International Convention on Civil Liability for Oil Pollution Damage (“ the CLC 1992 ”; see paragraph 54 above), the applicant submitted that the Master and crew could not be held civilly liable unless the damage resulted from their personal acts or omissions, committed with intent or recklessly. 61. The applicant contended that the amount of bail had been fixed not simply in view of his criminal responsibility, which would be engaged if he failed to appear for trial, but also – in disregard of the Court ’ s case-law – with a view to covering the compensation due in settlement of civil claims. In referring to the seriousness of the charges against the applicant, the domestic courts had actually had in mind the serious consequences of the accident. In the applicant ’ s view it was unacceptable, in determining the amount of bail to be imposed on the employee of a ship ’ s owner, to take into account public anger and indignation towards the shipping companies, before it had even been established who was responsible for the disaster. 62. The applicant argued that the Chamber ruling had been based on inappropriate considerations and on European directives which were not in force when the accident had occurred (in breach of the principle that the law should not have retrospective effect), and also on reports containing purely political statements of intent which had no legal effect whatsoever. He pointed out that Article 230 § 1 of the United Nations Convention of the Law of the Sea ( UNCLOS ) prohibited the imposition of a custodial sentence in the circumstances of the present case, and that the case was still at the investigation stage before the Spanish courts. 63. The applicant complained of the implications of the Chamber judgment which, in his view, called into question the principles of presumption of innocence and non-discrimination by permitting the authorities to fix bail solely by reference to the seriousness of the consequences of the alleged offence, without taking into consideration the accused ’ s personal circumstances. He stressed the pernicious effects of the Chamber judgment on the shipping industry and on any activities entailing a degree of risk, as it allowed the authorities to detain employees for reasons linked to their employer ’ s civil liability. Furthermore, the Chamber judgment created obstacles to the free movement of services within the European Union; the Court of Justice of the European Communities had held that national rules on criminal procedure could constitute a restriction on free movement. Finally, the applicant contended that the rules in question had been applied in a discriminatory manner in his case because of his nationality. 64. In the light of these submissions, the applicant requested the Grand Chamber to find a violation of Article 5 § 3 of the Convention. 2. The Government ’ s submissions 65. The Government began by pointing out that the applicant had been released. Making the point that bail had been paid only two and a half months after the applicant had been remanded in custody, they contended that the amount had not prevented him from paying it. 66. The Government were mindful of the requirements imposed by the Court ’ s case-law regarding the need to take account of the applicant ’ s personal situation in fixing bail. They were aware that the aim was to ensure that the sum in question was not used to anticipate the sentence without the accused having benefited from the guarantees of a fair trial and there being sufficient evidence against him. That would be contrary, inter alia, to the right to be presumed innocent. However, they observed that, in any event, those guarantees could come into play only if the appearance for trial of the person remanded in custody was assured; the investigating judge before whom the applicant was brought had noted the significant risk that the latter might abscond. The Government inferred from this that the level of bail had been justified by the authorities ’ wish to achieve the primary aim of the impugned measure, namely to ensure that the accused appeared for trial. 67. Contrary to the applicant ’ s assertion, his personal circumstances had been duly taken into account, as the courts had noted his foreign nationality, his complete lack of ties in Spain and the ease with which he could have left the country and thus evaded prosecution and obstructed the course of justice. Added to these factors had been objective considerations relating to the nature and seriousness of the alleged offences, the severe penalties they carried, the criminal and civil liability issues raised by the case, the considerable and undeniable public outcry, the national and international ramifications of the disaster and the exceptional scale of the damage. It followed that the amount of bail had been fixed in a non ‑ arbitrary manner and that sufficient reasons had been given, in accordance with the criteria laid down by the Court in Neumeister v. Austria ( 27 June 1968, Series A no. 8 ) and Iwańczuk v. Poland ( no. 25196/94, 15 November 2001 ), although the cases in question differed from the present case in some significant respects. 68. As to the nature of the alleged offences, the Government observed that the Corunna Audiencia Provincial, in its ruling on the case, had stated that the evidence available to it at that stage in the proceedings suggested that the alleged offences might have been committed intentionally ( dolus eventualis ). The court had made the point that environmental offences were not fully made out until such time as damage occurred as a result of the omissions of those who contributed to turning a hazard into catastrophic damage by repeatedly and persistently failing in their duty to manage the risk factors directly under their control and responsibility, that is to say, until the pollution of the natural resources became apparent, rather than when the pollutant was actually discharged. Furthermore, the offence of failure to comply with instructions, of which the applicant stood accused on account of the difficulties he had created by preventing the vessel from being taken in tow and hampering efforts to prevent and minimise the effects of the oil spill, had clearly been intentional and not the result of carelessness or negligence. 69. Accordingly, in the Government ’ s view, Article 230 of UNCLOS was not applicable in the instant case, as it referred only to violations of the laws and regulations for the prevention, reduction and control of pollution of the marine environment committed by foreign vessels beyond the territorial sea, for which monetary penalties only could be imposed, and not to wilful and serious acts of pollution in the territorial sea. UNCLOS did not provide for immunity in respect of offences against the environment and natural resources: only monetary penalties could be imposed for breaches of national laws and regulations committed in the territorial sea, except in the case of wilful and serious acts of pollution. 70. With regard to the length of the likely custodial sentence, the Government observed that offences resulting in irreversible and catastrophic damage carried sentences of between six and nine years ’ imprisonment if committed intentionally and between four and six years if they resulted from negligence (see paragraphs 29 and 30 above). As to the applicant ’ s age, the exemption on humanitarian grounds provided for by Article 92 of the Criminal Code did not amount to immunity; exemption from serving a custodial sentence required further conditions to be met. 71. The Government maintained that the amount of compensation due in settlement of civil claims had not been a determining factor in fixing bail, as demonstrated by the fact that the amount of bail was equivalent to less than 1% of the potential compensation. They were aware that determining the amount of security by sole reference to the losses sustained would be contrary to the Court ’ s case-law, as the measure in question was intended to ensure the appearance of the accused at trial, not to guarantee payment of the compensation due in respect of civil claims. However, the authorities were not prohibited from taking this factor, among others, into account in assessing the risk of the accused ’ s absconding, provided that his or her personal situation was also taken into consideration. On the contrary, the risk of the accused ’ s absconding could not be assessed “solely” by reference to the severity of the criminal and civil penalties – although these had to be taken into account – just as the amount of bail could not be determined “solely” on the basis of the losses incurred. The Court ’ s case-law in no way precluded account being taken of circumstances which might have a bearing on the risk of the accused ’ s absconding and on the adequacy of the sum required by way of bail. 72. On this last point the Government stressed that, both in remanding the applicant in custody and in fixing bail, the domestic courts had taken into account his nationality, the fact that he was resident abroad and had no ties in Spain, his professional status and the environment in which he worked and – as specified by the Court in Neumeister (cited above) – the persons who might be able to stand bail for him. They had also had regard to the complex legal structure governing the activity of the ship of which he was Master and the type of commercial activity in which he had been engaged. The fact that bail had been paid promptly served to confirm the validity of the criteria used to determine the amount. Furthermore, the Chamber had been correct in finding, in paragraph 39 of its judgment, that there had been a contractual legal relationship between the ship ’ s owner and the insurer. Bail had been paid by the company which insured the applicant ’ s employer, in accordance with usual practice in the shipping industry. If the applicant was found guilty of the charges against him, the judgment would fix the amount of compensation for which the shipowner employing him was civilly liable and which would ultimately be paid by the latter ’ s insurer. 73. The Government requested the Court to find that there had been no violation of Article 5 § 3 of the Convention. 3. Observations of the third-party interveners 74. The third-party interveners ’ representative observed that the criminal liability of a ship ’ s Master and crew for acts giving rise to pollution was strictly regulated by UNCLOS and MARPOL 73/78 (the International Convention for the Prevention of Pollution from Ships). Referring to Article 230 of UNCLOS, he pointed out that custodial penalties were prohibited for acts of pollution committed beyond the territorial sea, that is to say, more than twelve miles from the coast. As an additional safeguard against excessive action by the coastal State, UNCLOS provided a remedy in the form of an application for prompt release of a vessel or crew. In the three “prompt release” (fisheries-related) cases in which it had had jurisdiction – Camouco, Monte Confurco and Volga – the International Tribunal for the Law of the Sea had ordered the release of the crew. 75. However, under the CLC 1992 and the 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, shipowners were civilly liable for damage of this kind, even if they were not at fault. While the CLC 1992 stipulated that shipowners must be covered for civil liability, there was no obligation to indemnify the shipowner for the bail bond of the ship ’ s Master. There was usually a discretion to provide cover in respect of matters that did not fall squarely within any of the risks covered but were closely linked thereto, where it was considered appropriate in the circumstances. However, such discretion was exercised only exceptionally and was not intended to provide cover in respect of bail for crew. 76. While civil liability insurance cover was subject to limits, the evolution of the market had led to a 50% increase in cover provided under the CLC 1992 in the aftermath of the sinking of the Erika and the Prestige. Supplementary compensation could be paid by the Fund, but it would be inadmissible that dissatisfaction with the level of cover held by shipowners under the international system of civil liability agreed by States under the CLC 1992 should justify reliance on setting high bail for seafarers in order to secure the unsecured part of the clean-up costs. 77. The third-party interveners ’ representative expressed concern at the increasing criminalisation of seafarers ’ actions, and referred in that regard to the Guidelines on Fair Treatment of Seafarers in the event of a maritime accident, which called on States, inter alia, to: (a) take steps to ensure that seafarers, once interviewed or otherwise not required for a coastal State investigation following a maritime accident, were permitted to re-embark or be repatriated without undue delay; (b) consider non-custodial alternatives to pre-trial detention; and (c) make available a system for posting a reasonable bond or other financial security to allow for release and repatriation of detained seafarers pending resolution of any investigatory or judicial process. He stressed that decisions on the detention of seafarers should be taken solely in accordance with the latter ’ s personal circumstances and alleged actions and not on the basis of the possible consequences of those actions for the environment. C. The Court ’ s assessment 1. General principles 78. The Court reiterates that the guarantee provided for by Article 5 § 3 of the Convention is designed to ensure not the reparation of loss but, in particular, the appearance of the accused at the hearing. Its amount must therefore be assessed principally “ by reference to [the accused], his assets and his relationship with the persons who are to provide the security, in other words to the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non ‑ appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond ” (see Neumeister, cited above, § 14). 79. In any event it is clear from the structure of Article 5 in general, and the third paragraph in particular, that bail may only be required as long as reasons justifying detention prevail (see, in particular, Musuc v. Moldova, no. 42440/06, § 42, 6 November 2007, and Aleksandr Makarov v. Russia, no. 15217/07, § 139, 12 March 2009 ). If the risk of absconding can be avoided by bail or other guarantees, the accused must be released, bearing in mind that where a lighter sentence could be anticipated, the reduced incentive for the accused to abscond should be taken into account (see Vrenčev v. Serbia, no. 2361/05, § 76, 23 September 2008 ). The authorities must take as much care in fixing appropriate bail as in deciding whether or not the accused ’ s continued detention is indispensable (see, among other authorities, Iwańczuk, cited above, § 66; Bojilov v. Bulgaria, no. 45114/98, § 60, 22 December 2004; Skrobol v. Poland, no. 44165/98, § 57, 13 September 2005; Hristova v. Bulgaria, no. 60859/00, § 110, 7 December 2006; Musuc, cited above, § 42; and Georgieva v. Bulgaria, no. 16085/02, § 30, 3 July 2008 ). 80. Furthermore, the amount set for bail must be duly justified in the decision fixing bail (see Georgieva, cited above, §§ 15, 30 and 31) and must take into account the accused ’ s means (see Hristova, cited above, § 111). In that connection, the domestic courts ’ failure to assess the applicant ’ s capacity to pay the sum required was one of the reasons why the Court found a violation in the Toshev v. Bulgaria judgment ( no. 56308/00, § § 68 et seq., 10 August 2006 ). 81. While the amount of the guarantee provided for by Article 5 § 3 must be assessed principally by reference to the accused and his assets it does not seem unreasonable, in certain circumstances, to take into account also the amount of the loss imputed to him (see Moussa v. France, no. 28897/95, Commission decision of 21 May 1997, Decisions and Reports 89-B, p. 92). In the Kudła v. Poland judgment ( [GC], no. 30210/96, ECHR 2000 ‑ XI ), the Court observed that the domestic court had fixed the amount of bail by reference to the cost of the damage, the serious nature of the offences and, above all, the risk that the applicant would abscond (§ 47). It recognised that the risk of his absconding “ was one of the main factors that [ the court ] took into account when determining the amount of bail” (ibid., § 113). 2. Application of these principles to the present case 82. In the instant case the applicant was deprived of his liberty for eighty-three days and was released following the lodging of a bank guarantee of EUR 3,000,000 corresponding to the amount set for bail. The Court observes that Article 531 of the Spanish Code of Criminal Procedure, as interpreted by the Constitutional Court (see paragraph 25 above), lists the main factors to be taken into consideration in fixing bail, namely the nature of the offence, the penalty at stake, the legal interest being protected, the social situation of the accused and any previous convictions, and any other circumstance which might prompt the accused to seek to evade justice. The domestic courts based their findings on the serious nature of the offence and the public outcry caused and on certain aspects of the applicant ’ s personal situation, namely his nationality and place of permanent residence and the fact that he had no ties in Spain. For its part, the Constitutional Court took the view that the lower courts had provided ample reasons justifying the amount of bail and their refusal of the request to reduce it, on the following grounds: “the primary objective of securing the accused ’ s presence at the trial, the seriousness of the offences in question, the national and international disaster caused by the oil spill, the fact that the accused is a non-national and the fact that he has no ties in Spain ”. It further noted that the courts concerned had also taken into consideration the accused ’ s personal and financial circumstances and his professional environment, and that all these circumstances taken together had led them to consider that the risk of his absconding could only be reduced by setting such a high sum for bail (see paragraph 25 above). 83. The Court is conscious of the fact that the amount set for bail was high, and is prepared to accept that it exceeded the applicant ’ s own capacity to pay. However, it is clear from the foregoing that in fixing the amount the domestic courts sought to take into account, in addition to the applicant ’ s personal situation, the seriousness of the offence of which he was accused and also his “professional environment”, circumstances which, in the courts ’ view, lent the case an “exceptional” character. The Court must therefore ascertain whether this approach was compatible with Article 5 § 3. 84. In this connection the Court observes that, since the Neumeister judgment (cited above), it has consistently held that “ [the accused ’ s] relationship with the persons who are to provide the security ” is one of the criteria to be used in assessing the amount of bail (see paragraph 78 above). 85. As to whether it was legitimate to take the applicant ’ s professional environment into account in the present case, the Court reiterates at the outset that the domestic courts, which are in touch with local reality, are in principle better placed than the international judge to assess this. In the instant case it is clear from the case file that the domestic courts considered it essential to ensure the applicant ’ s appearance for trial before the courts hearing the case, in view of his responsibilities as the Prestige ’ s Master. The seriousness of the offences concerned, the “national and international disaster caused by the oil spill” (see paragraph 25 above) and the “public outcry” (see paragraphs 17, 18 and 20) were such that the presence of the applicant constituted a “primary objective” (see paragraph 25). 86. Against this background the Court cannot overlook the growing and legitimate concern both in Europe and internationally in relation to environmental offences. This is demonstrated in particular by States ’ powers and obligations regarding the prevention of maritime pollution and by the unanimous determination of States and European and international organisations to identify those responsible, ensure that they appear for trial and, if appropriate, impose sanctions on them (see “Relevant domestic and international law” above). A tendency can also be observed to use criminal law as a means of enforcing the environmental obligations imposed by European and international law. 87. The Court considers that these new realities have to be taken into account in interpreting the requirements of Article 5 § 3 in this regard. It takes the view 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 cannot therefore be ruled out that, in a situation such as that in the present case, the professional environment which forms the setting for the activity in question should be taken into consideration in determining the amount of bail, in order to ensure that the measure retains its effectiveness. 88. In that connection the Court points out that the facts of the present case – concerning marine pollution on a seldom-seen scale causing huge environmental damage – are of an exceptional nature and have very significant implications in terms of both criminal and civil liability. In such circumstances it is hardly surprising that the judicial authorities should adjust the amount required by way of bail in line with the level of liability incurred, so as to ensure that the persons responsible have no incentive to evade justice and forfeit the security. In other words, the question must be asked whether, in the context of the present case, where large sums of money are at stake, a level of bail set solely by reference to the applicant ’ s assets would have been sufficient to ensure his attendance at the hearing, which remains the primary purpose of bail. The Court agrees with the approach taken by the domestic courts on this point. 89. The Court further notes that, in deciding what constitutes a reasonable bond, the International Tribunal for the Law of the Sea also takes into account the seriousness of the alleged offences and the penalties at stake (see paragraphs 46 and 47 above). While conscious of the fact that the Tribunal ’ s jurisdiction differs from its own, the Court nevertheless observes that the Tribunal applies similar criteria in assessing the amount of security, and that the fact that it has a duty not to prejudice the merits of the case does not prevent it from making determinations bearing on the merits when these are necessary for the assessment of a reasonable bond (see, in particular, the Tribunal ’ s judgment of 6 August 2007 in the case of Hoshinmaru ( Japan v. the Russian Federation ), § 89, cited at paragraph 46 above). 90. In the instant case it is established that bail was paid by the company which insured the owner of the ship of which the applicant was Master. Leaving aside the considerations – “humanitarian”, contractual or other – which may have motivated the insurer, and which are disputed between the parties, the very fact that payment was made by the shipowner ’ s insurer would seem to confirm that the Spanish courts, when they referred to the applicant ’ s “professional environment”, were correct in finding – implicitly – that a relationship existed between the applicant and the persons who were to provide the security. 91. The observations of the third-party interveners ’ representative make clear that the CLC 1992 requires shipowners to take out civil liability insurance but that there is no obligation to indemnify the shipowner for the bail bond of a ship ’ s Master who has been detained by the maritime authorities. The interveners ’ representative also pointed out that the discretion exercised exceptionally by insurers in certain circumstances did not extend to providing cover in respect of bail for seafarers. And while the applicant and the third-party interveners ’ representative stressed that the shipowner and the insurer had not been bound by any obligations in the matter of bail, whether by virtue of custom and practice or contractually, the applicant acknowledged that Rule 9.28 of the London P&I Rules had served as a legal basis for payment (see paragraph 55 above). In any event, the Court observes that it was indeed the insurers of the applicant ’ s employer, that is, the London Steamship Owners ’ Mutual Insurance Association, which paid the security. 92. In these circumstances the Court considers that the domestic courts, in fixing the amount of bail, took sufficient account of the applicant ’ s personal situation, and in particular his status as an employee of the ship ’ s owner, his professional relationship with the persons who were to provide the security, his nationality and place of permanent residence and also his lack of ties in Spain and his age. In view of the particular context of the case and the disastrous environmental and economic consequences of the oil spill, the courts were justified in taking into account the seriousness of the offences in question and the amount of the loss imputed to the applicant. 93. It follows that there has been no violation of Article 5 § 3 of the Convention. | The Court held that there had been no violation of Article 5 § 3 of the Convention, finding that the Spanish courts had taken sufficient account of the applicant’s personal situation, and in particular his status as an employee of the ship’s owner, his professional relationship with the persons who were to provide the security, his nationality and place of permanent residence and also his lack of ties in Spain and his age. The Court was of the view that the increasingly high standard being required in the area of human rights protection correspondingly required greater firmness in assessing breaches of the fundamental values of democratic societies. Hence, it could not be ruled out that the professional environment which formed the setting for the activity in question should be taken into consideration in determining the amount of bail, in order to ensure that the measure was effective. Given the exceptional nature of the present case and the huge environmental damage caused by marine pollution on a seldom-seen scale, it was hardly surprising that the judicial authorities should have adjusted the amount required by way of bail in line with the level of liability incurred, so as to ensure that those responsible had no incentive to evade justice and forfeit the security. It was by no means certain that a level of bail set solely by reference to the applicant’s assets would have been sufficient to ensure his attendance at the hearing. |
1,057 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant provisions of the Netherlands Constitution 24. The 1983 Constitution does not, in terms, guarantee a right to property. Article 14 reads: "1. Expropriation may only be ordered in the general interest and against compensation determined in advance, in accordance to rules laid down by statute or delegated legislation. 2. ... 3. In the cases indicated by statute or delegated legislation there is a right to compensation or partial compensation for damage if property is destroyed or rendered unusable in the general interest by the competent authorities or if the exercise of the right of ownership is curtailed." Article 104 reads: "The Kingdom ’ s taxes shall be levied pursuant to statute. Other charges levied by the Kingdom shall be governed by statute." Under Netherlands constitutional law, courts may not examine statutes for compliance with the Constitution. Article 120 reads: "The courts shall not judge the constitutionality (grondwettigheid) of statutes and treaties." B. Relevant provisions of the Civil Code (Burgerlijk Wetboek), the Commercial Code (Wetboek van Koophandel) and the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) 25. At the material time the 1838 Civil Code was still in force. In so far as it concerned property law it was succeeded in 1992 by a new Civil Code; a number of provisions of the Commercial Code and the Code of Civil Procedure were changed or repealed at the same time. The following relates to the law as it stood at the time of the events complained of. 26. According to section 1177 of the Civil Code, debts could in principle be recovered against all goods belonging to the debtor, whether movable or immovable. Statutory provisions elsewhere allowed of certain limited exceptions not relevant to the present case. Section 1178 added the principle of paritas creditorum: all creditors were entitled to recover debts against the property of the debtor in proportion to the size of their claims, unless any one of them could claim a right to preferential payment. Such a right derived, inter alia, from specific legal provisions granting a priority right (privilege). These priority rights were based on the nature of the debt (section 1180) and their order of precedence was laid down by law. Most priority rights were to be found in the Civil Code, but not those of the tax authorities, for which the Civil Code referred to specialist legislation (section 1183 (1)). A priority right might concern a particular asset or all goods belonging to the debtor; in general, priority rights of the former type took precedence over priority rights of the latter (section 1184). Section 1185 enumerated debts covered by a priority right to certain assets belonging to the debtor. These included, inter alia, rent owed under a tenancy agreement and the price owed to a vendor of movable property. Section 1186 read as follows: "1. The landlord may exercise his priority right [by recovery against] fruit still attached to the trees by branches, or to the ground by roots, as well as fruit, whether harvested or not, present on the premises (die zich op den bodem bevinden), and all things present on the premises serving either as furnishings of the rented property or farm or for cultivation of the land, such as cattle, agricultural implements and the like, regardless of whether or not the above-mentioned objects belong to the tenant. 2. However, if the tenant has goods in his possession under a hire-purchase agreement, the landlord shall not be entitled to exercise his priority right against the vendor if the hire-purchase agreement relates to seeds or implements or if it is proved that the landlord knew of the hire-purchase agreement. 3. ..." Section 1190 read as follows: "The vendor of movable goods which have not yet been paid for may exercise his priority right against the sale price of those goods if they are still in the debtor ’ s possession, irrespective of whether a time has been specified for the sale." Section 1191 read as follows: "1. If no time has been specified for the sale, the vendor shall even be entitled to reclaim the goods as long as these are in the possession of the purchaser, and to prevent the resale thereof, provided that they are reclaimed within thirty days of delivery. 2. Sections 231, 233, 234, 236 and 237 of the Commercial Code shall apply by analogy." It should be noted that section 1191 did not concern a priority right but granted the vendor the right to rescind the sale by means of a statement made to the purchaser and to recover the ownership of the goods previously sold and delivered. The vendor might then reclaim his goods, even - within certain limits - from third parties. Sections 231 et seq. of the Commercial Code regulated the use of a similar right in case of bankruptcy of the debtor (see paragraph 35 below). 27. Sections 439 and following of the Code of Civil Procedure laid down rules for recovery against a debtor ’ s movable property. As a rule, such recovery started with seizure, which usually required a court judgment (although the law provided for exceptions, for example in tax cases, see paragraph 28 below). Section 456, which was referred to in section 16 of the 1845 Act, is of relevance: "1. He who claims to be the owner, in whole or in part, of the seized goods, may file an objection to the sale thereof by means of a summons containing the grounds of the objection addressed to the party for whom the seizure has been effected (arrestant) and the person against whom it is directed, and served on the custodian: all on pain of nullity. 2. ... 3. ..." C. Seizure by the tax authorities of goods belonging to third parties and present on the premises of the tax debtor (bodembeslag) 28. At the material time, pursuant to section 12 of the 1845 Act, tax debts took priority over all other debts with the exception of the court costs and other costs involved in forced sale of goods and debts secured by a mortgage. Goods belonging to third parties seized pursuant to section 16 (3) (see paragraph 29 below) were also subject to this priority (judgment of the Supreme Court of 5 October 1979, NJ 1980, 280). Section 14 of the 1845 Act entitled the tax authorities to seize a tax debtor ’ s movable and immovable assets and sell them to recover the debt. A prior judgment establishing the debt and ordering the debtor to pay was not required. Seizure pursuant to this provision was based on a writ of execution made out by the Tax Collector. Such a writ was served on the debtor and seizure and forced sale of his goods followed in the event of failure to pay. Section 14 explicitly stipulated that such a writ had the same legal effects as a judgment. Accordingly, section 14 (2) laid down that the Tax Collector ’ s writ of execution would be executed under the provisions of the Code of Civil Procedure governing the execution of judgments (see paragraph 27 above). Section 15 gave the tax debtor the right to file an objection in the civil courts against a writ of execution, although the grounds on which such an objection might be based were limited. It also specified that such an objection had no suspensive effect, although it was possible to seek an order for the suspension of execution in summary proceedings (kort geding). 29. Complementing the right to oppose the writ of execution granted the debtor by section 15, section 16 granted a similar right to third parties claiming ownership of movables seized on the debtor ’ s premises. Section 16 should be read in light of section 14, which stated that the relevant provisions of the Code of Civil Procedure are applicable. Its purpose was to limit the rights of third parties under section 456 (see paragraph 27 above). Section 16 read: "1. Third parties claiming to be fully or partially entitled to movable goods which have been seized in connection with a tax debt can address an administrative objection to the Commissioner of Direct Taxes, provided that the administrative objection be submitted before the sale and no later than seven days from the day of the seizure. The administrative objection shall be submitted to the Tax Collector, who shall acknowledge receipt. The Commissioner shall decide as soon as possible. The sale shall not take place within eight days of the service of this decision to the objector and to the person against whom the seizure is directed, [the service] again indicating a day for the sale. 2. The interested party shall not forfeit his right to submit his objection to the ordinary courts by filing an administrative objection in accordance with the preceding paragraph. 3. However, apart from the right to reclaim their property granted them by ... section 230 and following of the Commercial Code, third parties may never bring an action to challenge seizure in connection with taxes, with the exception of land tax, if the fruit, whether harvested or not, or movable goods serving either as furnishings of a house or farmstead or for the cultivation or use of land are located on the premises of the tax debtor concerned at the time of the seizure." "Premises" was interpreted as meaning a plot of land or part of a plot of land which is in actual use by the tax debtor and which he has at his disposal independently of others (see, inter alia, judgment of the Supreme Court of 18 October 1991, NJ 1992, 298; see also paragraph 30, sub-paragraph 4, of the 1961 Guidelines). "Furnishings" were all objects destined to make possible such use of the premises as was in conformity with the purpose for which the tax debtor actually intended to use them. They were held to include movable machines (see, inter alia, the judgment of the Haarlem Regional Court of 18 February 1964, NJ 1965, 402, and the judgment of the Amsterdam Court of Appeal of 7 December 1979, quoted in the judgment of the Supreme Court of 9 January 1981, NJ 1981, 656; see also paragraph 30, sub-paragraph 4, of the 1961 Guidelines) but not stocks of raw materials, finished products or vehicles (judgment of the Supreme Court of 11 March 1927, NJ 1927, p. 494; 1961 Guidelines, ibid.). The right of the tax authorities to seize all movables found on the premises of the tax debtor, including goods belonging to third parties, implied the right of recovery on the latter goods (paragraph 30, sub-paragraph 1, of the 1961 Guidelines and the Supreme Court ’ s judgment in the present case - see paragraph 23 above). Recovery was normally by public auction of the goods (section 14 (2) of the 1845 Act read in conjunction with section 463 of the Code of Civil Procedure). It was nonetheless considered permissible, if the tax debtor was bankrupt, for the Tax Collector to agree to allow the trustee to sell them privately (judgment of the Supreme Court of 26 May 1989, NJ 1990, 131). 30. To promote the uniform application of the law, the Minister of Finance established, by decision of 8 December 1961, the 1961 Guidelines. These were official instructions to the tax authorities, who were subordinate to him, indicating the way in which the law should be interpreted and applied. The 1961 Guidelines were published; individuals were entitled to rely on them in legal proceedings against the tax authorities because they were binding on the latter pursuant to general principles of good governance. The Supreme Court, in its judgment of 28 March 1990 (NJ 1991, 118), later confirmed this by ruling that guidelines such as these were to be applied in relation to interested parties as rules of law. Paragraph 30 of the 1961 Guidelines concerned the interpretation and application of section 16. Sub-paragraph 9 gave further instructions relating to the way in which administrative objections under section 16 (1) and (2) (see paragraph 29 above) were to be dealt with. Sub-paragraph 9 read: "The decision of the Commissioner should not only be governed by legal considerations. Once sufficient clarity has been obtained in respect of the legal relations at issue, considerations of fairness (billijkheid) and the requirements of proper policy should be given great importance. It is in accordance with such a policy that the property rights of a third party are spared where a personal tax or social-security contribution debt is to be collected and also where genuine property (reële eigendom) of a third party is involved, provided, however, that the following is taken into account. ... The above does not alter the fact that there can be no grounds for any reticent policy in clear cases of connivance between the tax debtor and the third party to create a sham property situation in an attempt to prevent recovery on goods. From the point of view of fairness and good policy recovery on goods of a third party is generally justified in cases of recovery of commercial tax and social-security contribution debts and when the economic relationship between the tax debtor and the goods provides reason to consider these goods as his and the circumstance that legally the goods belong to someone else has been created mainly to exclude recovery at the expense of the tax debtor or to enable the third party to obtain a preferential right of recovery on these goods. Examples of this are cases of goods delivered under a hire-purchase agreement or under various forms of leasing or other forms in which the supplier of the goods retains the ownership thereof. In addition, one might consider in this connection those cases in which ownership of the goods has been transferred to a third party as a security. ..." 31. In its judgment of 9 January 1981 (NJ 1981, 656), the Supreme Court rejected the proposition that section 16 (3) applied only to goods on the tax debtor ’ s premises the ownership of which had been transferred to a third party in order to prevent the tax authorities from recovering tax debts by the forced sale of those goods. Although it did appear from the drafting history of that provision that it had been prompted at the time (1845) by the desire to counter certain abuses, this did not mean that the occurrence of an abuse had been made a requirement for the provision ’ s applicability, section 16 being derived from the landlord ’ s priority right as defined in section 1186 of the Civil Code (see paragraph 26 above). Section 16 had afterwards several times been the subject of debate between the Government and Parliament and this debate supported the idea that the purport of section 16 was, in the words of the Supreme Court, "to afford the tax authorities the possibility of recovery against the goods seized, notwithstanding any third-party rights, as if they belonged to the tax debtor". 32. It was not possible for suppliers of goods to obtain information from the tax authorities as to whether their clients had any outstanding tax debts and whether there was accordingly any risk of seizure. According to section 67 (1) of the General Act on State Taxes (Algemene wet inzake rijksbelastingen) tax officials were, and are, under an obligation to keep such information secret. 33. A right similar to that of the Tax Collector under section 16 of the 1845 Act was enjoyed by the customs authorities. They were empowered by section 151 of the General Customs and Excise Act (Algemene wet inzake de douane en de accijnzen) to recover import duties and excise against the goods for which these were due, along with any administrative fines or interest, irrespective of who could claim rights to the goods concerned. D. Consequences of bankruptcy of the purchaser 34. When a natural or legal person was declared bankrupt, all seizures affecting his property lapsed (section 33 (2) of the Bankruptcy Act (Faillissementswet)). This included the seizure of his property by the tax authorities, but not the seizure pursuant to section 16 (3) of the 1845 Act of the goods of third parties. 35. In cases in which movable goods had been sold and delivered but not paid for in full, section 230 of the Commercial Code allowed the vendor to reclaim the goods if the purchaser went bankrupt, provided that the goods could still be identified (section 231) and that the vendor exercised his right within thirty days of delivery to the purchaser (section 232). The vendor had then to refund any payment he might already have received as well as certain expenses that might in the meantime have been incurred (sections 233 and 235). The purchase agreement was then considered rescinded and ownership of the goods was deemed always to have remained with the vendor (judgment of the Supreme Court of 12 June 1970, NJ 1971, 203). The vendor ’ s rights under sections 230 and following of the Commercial Code had to be respected by the tax authorities (section 16 (3) of the 1845 Act - see paragraph 29 above). E. Procedural provisions 36. As followed from section 16 (1) of the 1845 Act, third parties claiming a title to goods seized on the premises of the tax debtor could submit an administrative objection to the Tax Collector, who forwarded it to the Commissioner of Direct Taxes. Although section 16 (1) contained a seven-day time-limit, administrative objections submitted after its expiry nevertheless were dealt with and the Tax Collector was required to suspend the forced sale of the seized goods if that was still possible (paragraph 30, sub-paragraph 8, of the 1961 Guidelines). There were no restrictions as to the grounds on which an administrative objection to the tax authorities might be based. 37. After obtaining a decision from the Commissioner or - if preferred - without first obtaining such a decision, a third party could bring an action before the Regional Court under section 456 of the Code of Civil Procedure (see paragraph 27 above). However, section 16 (3) of the 1845 Act limited the grounds for such an action to the question whether the seized goods were in fact "fruit, whether harvested or not, or movable goods serving either as furnishings of a house or farmstead or for the cultivation or use of land" (judgment of the Supreme Court of 9 January 1981, NJ 1981, 656, and the judgment of the Supreme Court in the present case - see paragraph 23 above). 38. The possibilities of redress by the civil courts were clarified by the Supreme Court ’ s judgment in the present case (see paragraph 23 above). That judgment made it clear that in bringing a case before the civil courts a third party did not have to confine himself to the questions outlined in paragraph 37 above but could also base his action on a wrongful act in civil law (section 1401 of the Civil Code) committed by the Tax Collector, thus enabling the courts to review compliance with the 1961 Guidelines by the Tax Collector in authorising the seizure and by the Commissioner of Direct Taxes in rejecting the third party ’ s objections. F. Retention of title 39. Section 455 of the German Civil Code (Bürgerliches Gesetzbuch) reads as follows: "If the vendor of a movable good has retained ownership until the price has been paid, it should be assumed in case of doubt that the transfer of ownership takes place subject to a suspensive clause of full payment of the price and that the vendor is entitled to rescind the contract if the purchaser comes to be in default of payment." According to section 346 of the German Civil Code, in the event of rescission each party had to return to the other everything already received under the contract. At the time of the events complained of, there was no statutory provision in Netherlands law similar to section 455 of the German Civil Code but retention of title was frequently resorted to and upheld by the courts in disputes between private parties. G. Developments with regard to the right of the tax authorities to seize goods belonging to third parties and present on the premises of the tax debtor 40. In 1974 a report was published by a government committee (the "Houwing Committee") set up to review the law on priority rights (see paragraph 26 above). With regard to the right granted the tax authorities by section 16 (3) of the 1845 Act the report expressed the opinion that this right should be limited to cases in which other creditors besides the tax authorities had stipulated rights wholly or essentially amounting to security for debts; this would broadly correspond to the policy followed by the tax authorities themselves as laid down in the 1961 Guidelines (see paragraph 30 above). It also suggested extending the right of seizure to all movable goods intended for permanent professional use by the enterprise concerned. 41. The right of the tax authorities pursuant to section 16 (3) came under increasing criticism. For this reason, the Government, when introducing legislation aimed at modernising the law on the collection of tax debts, did not - for the time being - propose any significant changes to the priority right of the tax authorities or the right of seizure. They stated, when introducing the relevant Bill, that that required further study, for which an Interdepartmental Working Party was to be set up. This position was criticised in Parliament, particularly by those parties which considered the wide powers of seizure enjoyed by the tax authorities unjustified, but the Government maintained their position. Nevertheless, the submission to Parliament of the new Bill led once more to critical debate both within Parliament and outside it. 42. The Bill referred to in the previous paragraph became the new Tax Collection Act, which entered into force on 1 June 1990 (Invorderingswet 1990 - "the 1990 Act"). For all practical purposes, it retains intact the arrangement of the 1845 Act as regards the priority of tax debts, even extending the time-limit involved. It also contains a provision (section 22) which is in practice almost identical to section 16 of the 1845 Act (see paragraph 29 above), the only real difference being that in the third paragraph an exhaustive list is given of the taxes concerned. According to section 70 of the 1990 Act section 22 would cease to operate on 1 January 1993, unless by that date a Bill had been introduced for its replacement or for prolonging its validity for up to one year; in fact, a Bill (no. 22,942) meeting these requirements was submitted to the Lower House of Parliament on 30 November 1992. 43. The Interdepartmental Working Party (see paragraph 41 above) published its report in 1990. Bill no. 22,942 - which is based on, and closely follows, the report of the above-mentioned Interdepartmental Working Party - proposes to amend the Civil Code and the 1990 Act in such a way as to grant the tax authorities a right of recovery against all goods not belonging to the tax debtor but intended for his permanent use in the exercise of his profession. Third parties would not be able to oppose to the Tax Collector any negotiated right which served essentially as a security. The Tax Collector would, however, be required to enquire of the tax debtor whether any of the seized goods belonged to third parties. PROCEEDINGS BEFORE THE COMMISSION 44. Gasus applied to the Commission on 6 July 1989. They alleged that they had not had access to an independent and impartial tribunal, in violation of Article 6 para. 1 (art. 6-1), and that they had been deprived of their possessions in violation of Article 1 of Protocol No. 1 (P1-1). 45. On 21 October 1992 the Commission declared the application (no. 15375/89) admissible as regards the complaints under Article 1 of Protocol No. 1 (P1-1) and inadmissible as to the remainder. In its report of 21 October 1993 (Article 31) (art. 31), the Commission expressed the opinion, by six votes to six with the casting vote of its President, that there had been no violation of Article 1 of Protocol No. 1 (P1-1). 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 [3]. FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT 46. The Government concluded their memorial by stating the opinion that Gasus ’ s application based on a violation of Article 1 of Protocol No. 1 (P1-1) should be declared inadmissible since domestic remedies had not been exhausted (Article 26 of the Convention) (art. 26), and that the application was in any event unfounded. AS TO THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 47. The applicant company essentially complained of a violation of Article 1 of Protocol No. 1 (P1-1). According to the Government, however, the applicant company had not, or not sufficiently, raised this complaint in the national courts. The Government relied on Article 26 (art. 26) of the Convention, which provides: "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ..." They pointed to the fact that in the domestic proceedings the applicant company had based their arguments, in so far as they related to the Convention, on Article 6 (art. 6) only. Before the Court of Appeal and the Supreme Court Gasus had actually denied that Article 1 of Protocol No. 1 (P1-1) was applicable. In the opinion of the Commission, the entire proceedings at national level had concerned the question whether or not the applicant company had been unlawfully deprived of its possessions. Besides, both the Court of Appeal and the Supreme Court had examined this question under Article 1 of Protocol No. 1 (P1-1). 48. The Court reiterates that the purpose of the requirement that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right - normally through the courts - the violations alleged against them before those allegations are submitted to the Convention institutions (see, as the most recent authority, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 18, para. 33). This means that the complaint which it is intended to bring before the Commission must first be raised, at least in substance and in compliance with the relevant requirements of domestic law, before the appropriate national courts (see, inter alia, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 54, para. 38). 49. It is true that Article 1 of Protocol No. 1 (P1-1) was referred to for the first time by the Tax Collector; it is also the case that the applicant company consistently denied its applicability and argued it before the Supreme Court only in an alternative submission. Nevertheless, in the event both the Court of Appeal and the Supreme Court were able to deal with the allegation of a violation of that provision (P1-1) and in fact did so. Accordingly, the applicant company did provide the Netherlands courts, and more particularly the Netherlands Supreme Court (see paragraph 23 above), with the opportunity of preventing or putting right the alleged violation of Article 1 of Protocol No. 1 (P1-1). The preliminary objection therefore fails. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1) 50. The applicant company complained about the seizure by the tax authorities and subsequent sale with their connivance of the concrete-mixer. They relied on Article 1 of Protocol No. 1 (P1-1), which reads: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." The Government maintained that there had been no violation of that provision (P1-1). In its report the Commission came to the same conclusion. A. Whether there was an interference with the applicant company ’ s "peaceful enjoyment of [their] possessions" 51. The applicant company pointed out that they had sold the concrete-mixer to Atlas subject to retention of title until the full price had been paid. Since at the time of the seizure the full price had not been paid, the ownership of the concrete-mixer still remained with Gasus. This, in their contention, meant that the seizure and subsequent selling of that machine by the Netherlands tax authorities had interfered with their right of ownership. The Commission also considered that there had been an interference with Gasus ’ s "peaceful enjoyment of [their] possessions". 52. The Government argued that retention of title was more in the nature of a security right in rem than of "true" ownership and that the "enjoyment" of it was limited to security for payment of the purchase price. "True" or "economic" ownership was vested in the purchaser, who stood to lose by damage to or loss of the goods purchased and stood to gain by their use or resale. At the time of the events complained of, the concrete-mixer was thus no longer a "possession" whose "peaceful enjoyment" was guaranteed to Gasus by Article 1 of Protocol No. 1 (P1-1). 53. The Court recalls that the notion "possessions" (in French: biens) in Article 1 of Protocol No. 1 (P1-1) has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as "property rights", and thus as "possessions", for the purposes of this provision (P1-1). In the present context it is therefore immaterial whether Gasus ’ s right to the concrete-mixer is to be considered as a right of ownership or as a security right in rem. In any event, the seizure and sale of the concrete-mixer constituted an "interference" with the applicant company ’ s right "to the peaceful enjoyment" of a "possession" within the meaning of Article 1 of Protocol No. 1 (P1-1). B. The applicable rule 54. The Court will usually confine its attention, as far as possible, to the issues raised by the specific case before it. In the present case, however, it must examine section 16 (3) of the 1845 Act since the interference complained of resulted from the application of that provision. 55. As the Court has often held, Article 1 (P1-1) guarantees in substance the right of 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 peaceful enjoyment of property. 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 third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among many other authorities, the AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108, p. 17, para. 48). 56. The applicant company based their entire argument on the premise that they had been deprived of their possessions. 57. In the Commission ’ s opinion, sale under retention of title created a "special legal situation" in which the respective rights of the vendor and the purchaser depended on the domestic legal rules applicable to the transaction. Normally, the vendor and the purchaser would both be holders of a limited property right protected by Article 1 of Protocol No. 1 (P1-1), but the exact scope of the right enjoyed by each party might be different according to the legal system involved. In particular, it depended on domestic law to what extent retention of title protected the vendor ’ s property against claims by other creditors. If these other creditors were entitled to have the property seized and sold in settlement of their claims, the result was that the vendor was deprived of his property right. This, in the Commission ’ s view, was what had happened to the applicant company in the present case. The applicable rule was therefore the one contained in the second sentence of the first paragraph. 58. The Government denied that the applicant company had been deprived of their possessions. Firstly, what the tax authorities had done was to seize the concrete-mixer, not to confiscate it; the seizure had left Gasus ’ s property rights intact. Secondly, although the concrete-mixer had eventually been sold and although the sale had been made possible by the seizure, it had been effected under a private contract entered into by Atlas and Van Baarsen. Thirdly, they argued that the expression "deprivation" implied that the natural or legal person concerned was left empty-handed; in fact, Gasus had retained their claim against Atlas for payment of the balance of the purchase price, and the Government were not to be blamed if recovery turned out to be impossible as a result of Atlas ’ s subsequent bankruptcy. 59. The Court considers that the interference complained of in this case was in fact the result of the tax authorities ’ exercise of their powers under section 16 (3) of the 1845 Act. The purpose of that Act was to regulate the collection of direct taxes within the Netherlands, and section 16 (3) formed part of the provisions concerning the enforcement of unpaid tax debts. Like all other creditors, the tax authorities could recover unpaid tax debts against all the tax debtor ’ s seizable assets; under section 16 (3) they were, moreover, empowered to seize and recover against all movable property found on the tax debtor ’ s premises which qualified as "furnishings", irrespective of whether or not these goods belonged to the tax debtor (see paragraphs 29 to 31 above). It was in the exercise of this power that the tax authorities seized the concrete-mixer to which Gasus claimed title, in partial enforcement of Atlas ’ s unpaid tax debts. Against this background, the most natural approach, in the Court ’ s opinion, is to examine Gasus ’ s complaints under the head of "securing the payment of taxes", which comes under the rule in the second paragraph of Article 1 (P1-1). That paragraph explicitly reserves the right of Contracting States to pass such laws as they may deem necessary to secure the payment of taxes. The importance which the drafters of the Convention attached to this aspect of the second paragraph of Article 1 (P1-1) may be gauged from the fact that at a stage when the proposed text did not contain such explicit reference to taxes, it was already understood to reserve the States ’ power to pass whatever fiscal laws they considered desirable, provided always that measures in this field did not amount to arbitrary confiscation (see Sir David Maxwell-Fyfe, Rapporteur of the Committee on Legal and Administrative Questions, Second Session of the Consultative Assembly, Sixteenth Sitting (25 August 1950), Collected Edition of the Travaux préparatoires, vol. VI, p. 140, commenting on the text of the proposed Article 10A, ibid., p. 68). The fact that current tax legislation makes it possible for the tax authorities, on certain conditions, to recover tax debts against a third party ’ s assets does not warrant any different conclusion as to the applicable rule. Neither does it suffice in itself to describe section 16 (3) of the 1845 Act as granting powers of arbitrary confiscation. Conferring upon a particular creditor the power to recover against goods which, although in fact in the debtor ’ s possession, are legally owned by third parties is, in several legal systems, an accepted method of strengthening that creditor ’ s position in enforcement proceedings. Under Netherlands law as it stood at the material time, landlords had a comparable power with respect to unpaid rent, as they did also under French and Belgian law; the Government have also cited several provisions in the tax laws of other member States that give similar powers to the tax authorities in special cases. Consequently, the fact that the Netherlands legislature has seen fit to strengthen the tax authorities ’ position in enforcement proceedings against tax debtors does not justify the conclusion that the 1845 Act, or section 16 (3) of it, is not aimed at "securing the payment of taxes", or that using the power conferred by that section constitutes a "confiscation", whether "arbitrary" or not, rather than a method of recovering a tax debt. C. Compliance with the conditions laid down in the second paragraph 60. As follows from the previous paragraph, the present case concerns the right of States to enact such laws as they deem necessary for the purpose of "securing the payment of taxes". In the present case the Court is not called upon to ascertain whether this right, as the wording of the provision may suggest, is limited to procedural tax laws (that is to say: laws which regulate the formalities of taxation, including the enforcement of tax debts) or whether it also covers substantive tax laws (that is to say: laws which lay down the circumstances under which tax is due and the amounts payable); the 1845 Act, which is at issue in the present case, was plainly a procedural tax law. In passing such laws the legislature must be allowed a wide margin of appreciation, especially with regard to the question whether - and if so, to what extent - the tax authorities should be put in a better position to enforce tax debts than ordinary creditors are in to enforce commercial debts. The Court will respect the legislature ’ s assessment in such matters unless it is devoid of reasonable foundation. 61. Section 16 (3) of the 1845 Act gave the tax authorities the power to recover tax debts against certain goods which, although in fact in the possession of their debtor - since they were on his premises and served as "furnishings" - were owned, as a matter of law, by a third party. It thus dispensed the tax authorities from having to consider whether these goods were actually the property of the tax debtor. The purpose of the provision was obviously to facilitate the enforcement of tax debts, which in itself is clearly in the general interest. It is true that the 1961 Guidelines curtailed the tax authorities ’ powers under section 16 (3). As restricted by those guidelines, section 16 (3) empowered the tax authorities to recover only certain tax debts - including those such as the ones owed by Atlas - against "furnishings" owned by third parties where third-party ownership was intended solely to frustrate recovery against the tax debtor or to afford the third party a preferential right of recovery over the goods concerned (see paragraph 30 above). This, however, did not affect the essential aim of section 16 (3), which remained, as was stressed by the Government, to secure tax revenue in the general interest. 62. According to the Court ’ s well-established case-law, the second paragraph of Article 1 of Protocol No. 1 (P1-1) must be construed in the light of the principle laid down in the Article ’ s (P1-1) first sentence (see, among many other authorities, the above-mentioned AGOSI judgment, ibid.). Consequently, an interference must achieve 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 (P1-1) as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aim pursued. 63. Gasus stressed that they had been deprived of their property in payment of a tax debt owed by a third party, the Netherlands company Atlas. They pointed out that they were in no way responsible for causing the tax debt. Moreover, they could not possibly have been aware of it, since in the Netherlands the tax authorities were not allowed to give such information to anyone but the actual debtor. Finally, the fact that the fiduciary title - to goods not considered "furnishings" - of one of Atlas ’ s bankers, NIB, had been respected, whereas Gasus ’ s retention of title had not, demonstrated that the interference with Gasus ’ s rights had been arbitrary. In their submission, retention of title was closer to "true" ownership than fiduciary title was. The latter involved transfer of ownership from a borrower, who remained entitled to use and often even to sell the goods, to a lender who had never had any interest of his own in the goods. Retention of title, on the other hand, was the continuation of the ownership of the former owner until the purchaser had fulfilled his obligations. 64. In the opinion of the Commission, the measure in issue had been taken in accordance with specific rules of Netherlands law. Consequently, the applicant company could have taken these rules into account, if need be with appropriate legal advice; they could have decided not to sell the concrete-mixer at all, or they could have limited their risk by negotiating "specific security" in addition to the retention of their title or by taking out insurance. 65. The Government preferred to view the case as one concerning the conflicting interests of creditors faced with a common debtor whose assets were insufficient to satisfy them all. Although Netherlands law theoretically recognised the principle of paritas creditorum, it had, like other legal systems, created priority rights favouring certain creditors over others and had ranked the rights of the tax authorities very high. According to the report of the Interdepartmental Working Party (see paragraph 43 above), which the Government submitted to the Court, both the high rank of the tax authorities ’ priority right and their extensive rights of seizure were justified by, inter alia, the following differences between the tax authorities and private creditors: the tax authorities did not choose their debtors; they were expected to show greater leniency than other creditors and were enabled by their priority right (which ensured that tax debts would be paid in any case) to be flexible as regards both the timing of assessments and the collection of the amount due; they were obliged to grant credit; and they were not able to make allowance for the risk that the parties they dealt with might prove insolvent. In addition commercial creditors could in many cases obtain a higher preference by entering into agreements like fiduciary transfer of ownership and retention of title, and the right to seize goods nominally belonging to third parties served to correct the imbalance thereby created. Contrary to what Gasus had suggested, their position and that of NIB were not comparable. While it was true that NIB ’ s merely fiduciary ownership had been respected whereas the applicant company ’ s retention of title had not, the reason for this was precisely that the goods to which NIB ’ s ownership related were not "furnishings" for the purpose of section 16 (3) of the 1845 Act and therefore not subject to seizure. There was therefore no arbitrary distinction in this respect. In any event, according to the 1961 Guidelines, "true" ownership (i.e. ownership not merely negotiated as a security right in rem) had to be respected by the tax authorities. In the Government ’ s view, Netherlands law was free to define its understanding of the concept of ownership and could therefore restrict certain forms in the general interest. Other Contracting States limited the protection afforded by retention of title even further than did the Netherlands. Finally, the Government recalled that Gasus had retained their claim against Atlas for payment of the purchase price. This meant that Gasus had not been left empty-handed. Although Atlas ’ s bankruptcy had deprived the claim of its value, that was not a state of affairs for which the Government could be held responsible. 66. The Court notes at the outset that the grant to the tax authorities of a power to recover tax debts against goods owned by certain third parties - such as a seller of goods who retains his title - does not in itself prompt the conclusion that a fair balance between the general interest and the protection of the individual ’ s fundamental rights has not been achieved. The power of recovery against goods which are in fact in a debtor ’ s possession although nominally owned by a third party is a not uncommon device to strengthen a creditor ’ s position in enforcement proceedings; it cannot be held incompatible per se with the requirements of Article 1 of Protocol No. 1 (P1-1). Consequently, a legislature may in principle resort to that device to ensure, in the general interest, that taxation yields as much as possible and that tax debts are recovered as expeditiously as possible. Nonetheless, it cannot be overlooked that, quite apart from the dangers of abuse, the character of legislation by which the State creates such powers for itself is not the same as that of legislation granting similar powers to narrowly defined categories of private creditors. Consequently, further examination of the issue of proportionality is necessary in this case. 67. In this connection, the Court also notes that in assessing the proportionality of the powers under section 16 (3) and their use in the present case it is immaterial that Gasus were a limited company with legal personality under German law and had their registered office in Germany. Gasus had sold and delivered their concrete-mixer to a purchaser based in the Netherlands and installed it on his premises. Gasus could therefore not have expected otherwise than that the effectiveness of their retention of title in the face of seizure depended on Netherlands law. It consequently makes no difference whether a seller who retains title and who finds himself a victim of use by the tax authorities of their power under section 16 (3) has his domicile or registered office in the Netherlands or elsewhere. In either case the essential question must be whether as a consequence of the tax authorities ’ actions against the goods to which title has been retained the vendor has had to bear "an individual and excessive burden" (see particularly the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 34, para. 50). 68. Whatever the nature of retention of title compared with "true" or "ordinary" property rights - a question on which the Court discerns no common ground among the Contracting States - it is apparent that whoever sells goods subject to retention of title is not interested so much in maintaining the link of ownership with the goods themselves as in receiving the purchase price. A State may therefore legitimately, within its margin of appreciation, differentiate between retention of title and other forms of ownership. It matters little whether such differentiation takes the form of substantive limitations of the right of ownership or is expressed in terms of procedural law; as the Court pointed out in its Fayed v. the United Kingdom judgment of 21 September 1994, such a distinction may be no more than a question of legislative technique (Series A no. 294-B, p. 50, para. 67). 69. It cannot be ignored that in general the cases in which the tax authorities will make use of their high-ranking priority rights and their powers under section 16 (3) of the 1845 Act are precisely those where the tax debtor is unable to satisfy all his creditors. This necessarily implies that in these cases commercial creditors will not be fully paid if they receive any payment at all. The Court therefore does not agree with the Government that the fact that the applicant company ’ s claim against Atlas was rendered worthless is not a consequence of the action taken by the tax authorities. 70. It is nonetheless true, as observed by the Commission, that the applicant company were engaged in a commercial venture which, by its very nature, involved an element of risk (see, mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 26, para. 59). The facts of the case show that Gasus were in fact sufficiently aware of their risk to take steps to limit it. Having allowed Atlas to pay the purchase price of the concrete-mixer in instalments, and being aware of the danger that Atlas might default on its payments, Gasus reserved their title to the concrete-mixer until the full price had been paid. This, under Netherlands law, provided them with a considerable degree of security, as their claims to the concrete-mixer thus took priority over those of all other creditors except the tax authorities, who were entitled under section 16 (3) of the 1845 Act to seize it and take the proceeds for the State. Like the Commission, the Court considers that Gasus could have eliminated their risk altogether by declining to extend credit to Atlas: they could have stipulated payment of the entire purchase price in advance or else refused to sell the concrete-mixer in the first place. It also accepts that the applicant company might have obtained additional security, for example in the form of insurance or a banker ’ s guarantee, which pass the risk on to another party. It is therefore unnecessary for the Court to establish whether the applicant company could have ascertained the existence and extent of Atlas ’ s tax debts, this point being in dispute. Nor is it material that the applicant company bore no responsibility for the tax debt. In the present context it is not without relevance that the owners of goods subject to seizure under section 16 (3) of the 1845 Act had knowingly allowed them to serve as "furnishings" of the tax debtor ’ s premises. They might therefore well be held responsible to some extent for enabling the tax debtor to present a semblance of creditworthiness. 71. Furthermore, whether or not the tax authorities are under any legal or other obligation to be more flexible in respect of tax debtors in temporary financial difficulties, they do not have the same means at their disposal as commercial creditors for protecting themselves against the consequences of their debtors ’ financial problems. Nor have they any other means of protecting themselves against their debtors ’ attempts to solve such problems by vesting the title to their "furnishings" in another party as a device for borrowing against a security. 72. The Court accepts the Government ’ s argument that the fact that the concrete-mixer to which Gasus had reserved title was seized while goods subject to NIB ’ s fiduciary ownership rights were spared does not suffice to demonstrate that the seizure of the concrete-mixer was arbitrary. Whereas the concrete-mixer supplied by Gasus qualified as "furnishings", this was not the case with the goods over which NIB could claim rights. This distinction was based on the law, as elucidated by a long-established body of case-law, and accorded with the stated policy of the Minister of Finance. 73. Finally, in the Court ’ s opinion, it should be taken into account that, as was made clear by the Supreme Court in its judgment in this case, under Netherlands law third parties whose goods are seized under section 16 (3) of the 1845 Act may have the use that has been made of the powers conferred by that section adequately reviewed by a tribunal under a procedure which meets the requirements of Article 6 para. 1 (art. 6-1) of the Convention. 74. In view of the above, the Court comes to the conclusion that the requirement of proportionality has been satisfied. Accordingly, there has been no violation of Article 1 of Protocol No. 1 (P1-1). | The Court held that there had been no violation of Article 1 (protection of property) of Protocol No. 1, finding that the requirement of proportionality between the means employed and the aim pursued had been satisfied. It considered in particular that the interference complained of in this case was in fact the result of the tax authorities’ exercise of their powers under the 1845 Tax Collection Act (Invorderingswet). It also noted that the present case concerned the right of States to enact such laws as they deem necessary for the purpose of securing the payment of taxes and recalled that, in this matter, the legislature must be allowed a wide margin of appreciation, especially with regard to the question whether – and if so, to what extent – the tax authorities should be put in a better position to enforce tax debts than ordinary creditors are in to enforce commercial debts. The Court will respect the legislature’s assessment in such matters unless it is devoid of reasonable foundation. |
1,014 | Military presence | II. RELEVANT INTERNATIONAL AND DOMESTIC LAW AND PRACTICE A. Relevant provisions of the Third and Fourth Geneva Conventions 33. The following Articles of the Third Geneva Convention of 12 August 1949, Relative to the Treatment of Prisoners of War (“the third Geneva Convention”) and the Fourth Geneva Convention of 12 August 1949, Relative to the Protection of Civilian Persons in Time of War (“the Fourth Geneva Convention”), are of particular relevance to the issues in the present case. Article 2, common to all four Geneva Conventions In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof... Article 4(A) of the Third Geneva Convention Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. Article 5 of the Third Geneva Convention (1) The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation. (2) Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. Article 12 of the Third Geneva Convention Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them. Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody. Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with. Article 21 of the Third Geneva Convention The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary. ... Article 118 of the Third Geneva Convention Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities. ... Article 42 of the Fourth Geneva Convention The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary ... Article 43 of the Fourth Geneva Convention Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Article 78 of the Fourth Geneva Convention If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. Protected persons made subject to assigned residence and thus required to leave their homes shall enjoy the full benefit of Article 39 of the present Convention. Article 133(1) of the Fourth Geneva Convention Internment shall cease as soon as possible after the close of hostilities. Article 132(2) of the Fourth Geneva Convention Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist. B. The Vienna Convention on the Law of Treaties, 1969, Article 31 34. 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. C. Case-law of the International Court of Justice concerning the inter-relationship between international humanitarian law and international human rights law 35. 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.” 36. 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.” 37. In its judgment Armed Activities on the Territory of the Congo (Democratic Republic of Congo (DRC) v. Uganda ), (19 December 2005) the International Court of Justice held as follows: “215. The Court, having established that the conduct of the UPDF and of the officers and soldiers of the UPDF [Uganda People’s Defence Force] 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).” D. The Report of the Study Group of the International Law Commission on Fragmentation of International Law 38. The Report of the Study Group of the International Law Commission on the topic “Fragmentation of international law: difficulties arising from diversification and expansion of international law” was adopted by the International Law Commission at its fifty-eighth session, in 2006. The Analytical Study of the Study Group on the same topic, dated 13 April 2006, (A/CN.4/L.682) stated at § 104: The example of the laws of war focuses on a case where the rule itself identifies the conditions in which it is to apply, namely the presence of an ‘armed conflict’. Owing to that condition, the rule appears more ‘special’ than if no such condition had been identified. To regard this as a situation of lex specialis draws attention to an important aspect of the operation of the principle. Even as it works so as to justify recourse to an exception, what is being set aside does not vanish altogether. The [International Court of Justice] was careful to point out that human rights law continued to apply within armed conflict. The exception - humanitarian law - only affected one (albeit important) aspect of it, namely the relative assessment of “arbitrariness”. Humanitarian law as lex specialis did not suggest that human rights were abolished in war. It did not function in a formal or absolute way but as an aspect of the pragmatics of the Court’s reasoning. However desirable it might be to discard the difference between peace and armed conflict, the exception that war continues to be to the normality of peace could not be simply overlooked when determining what standards should be used to judge behaviour in those (exceptional) circumstances. Legality of Nuclear Weapons was a ‘hard case’ to the extent that a choice had to be made by the [International Court of Justice] between different sets of rules none of which could fully extinguish the others. Lex specialis did hardly more than indicate that though it might have been desirable to apply only human rights, such a solution would have been too idealistic, bearing in mind the speciality and persistence of armed conflict. So the Court created a systemic view of the law in which the two sets of rules related to each other as today’s reality and tomorrow’s promise, with a view to the overriding need to ensure ‘the survival of a State’.” E. The House of Lords’ judgment in Al-Jedda 39. In their judgment of 12 December 2007 in the Al-Jedda case ( R. (on the application of Al-Jedda) (FC) (Appellant) v Secretary of State for Defence (Respondent) [2007] UKHL 58), the majority of the House of Lords considered that Mr Al-Jedda’s internment was authorised by United Nations Security Council Resolution 1546. They further held that Article 103 of the United Nations Charter operated to give the United Kingdom’s obligations pursuant to that resolution primacy over its obligations under Article 5 of the Convention (see further Al-Jedda v. the United Kingdom [GC], no. 27021/08, §§ 18-22, ECHR 2011). Lord Bingham, however, made it clear that, despite this conclusion, Article 5 had some continued application: “39. Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention.” Similarly, Baroness Hale observed: “125. ... I agree with Lord Bingham, for the reasons he gives, that the only way is by adopting such a qualification of the Convention rights. 126. That is, however, as far as I would go. The right is qualified but not displaced. This is an important distinction, insufficiently explored in the all or nothing arguments with which we were presented. We can go no further than the UN has implicitly required us to go in restoring peace and security to a troubled land. The right is qualified only to the extent required or authorised by the resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences. 127. It is not clear to me how far UNSC resolution 1546 went when it authorised the [Multi-National Force] to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks’ (para 10). The ‘broad range of tasks’ were listed by Secretary of State Powell as including ‘combat operations against members of these groups [seeking to influence Iraq’s political future through violence], internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security’. At the same time, the Secretary of State made clear the commitment of the forces which made up the MNF to ‘act consistently with their obligations under the law of armed conflict, including the Geneva Conventions’. 128. On what basis is it said that the detention of this particular appellant is consistent with our obligations under the law of armed conflict? He is not a ‘protected person’ under the fourth Geneva Convention because he is one of our own citizens. Nor is the UK any longer in belligerent occupation of any part of Iraq. So resort must be had to some sort of post conflict, post occupation, analogous power to intern anyone where this is thought ‘necessary for imperative reasons of security’. Even if the UNSC resolution can be read in this way, it is not immediately obvious why the prolonged detention of this person in Iraq is necessary, given that any problem he presents in Iraq could be solved by repatriating him to this country and dealing with him here. If we stand back a little from the particular circumstances of this case, this is the response which is so often urged when British people are in trouble with the law in foreign countries, and in this case it is within the power of the British authorities to achieve it. 129. But that is not the way in which the argument has been conducted before us. Why else could Lord Bingham and Lord Brown speak of ‘displacing or qualifying’ in one breath when clearly they mean very different things? We have been concerned at a more abstract level with attribution to or authorisation by the United Nations. We have devoted little attention to the precise scope of the authorisation. There must still be room for argument about what precisely is covered by the resolution and whether it applies on the facts of this case. Quite how that is to be done remains for decision in the other proceedings. With that caveat, therefore, but otherwise in agreement with Lord Bingham, Lord Carswell and Lord Brown, I would dismiss this appeal.” F. Derogations relating to detention under Article 15 of the European Convention on Human Rights and Article 4 of the International Covenant on Civil and Political Rights 40. Leaving aside a number of declarations made by the United Kingdom between 1954 and 1966 in respect of powers put in place to quell uprisings in a number of its colonies, the derogations made by Contracting States under Article 15 of the Convention have all made reference to emergencies arising within the territory of the derogating State. 41. Article 4 of the International Covenant for the Protection of Civil and Political Rights (“ICCPR”) contains a derogation clause similar to Article 15 of the Convention. According to the information available to the Court, since ratifying the ICCPR, 18 States have lodged declarations derogating from their obligations under Article 9, which provides for “the right to liberty and security of person”. Of these, only three declarations could possibly be interpreted as including a reference, by the authorities of the derogating State, to a situation of international armed conflict or military aggression by another State. The States which filed these derogations were Nicaragua, between 1985 and 1988, where the declaration referred to the United States’ “unjust, unlawful and immoral aggression against the Nicaraguan people and their revolutionary government”; Azerbaijan, between April and September 1993, where the declaration referred to the “escalating aggression by the armed forces of Armenia”; and Israel, where the declaration made on 3 October 1991 and currently applicable reads as follows: “Since its establishment, the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens. These have taken the form of threats of war, of actual armed attacks, and campaigns of terrorism resulting in the murder of and injury to human beings. In view of the above, the State of Emergency which was proclaimed in May 1948 has remained in force ever since. This situation constitutes a public emergency within the meaning of article 4 (1) of the Covenant. The Government of Israel has therefore found it necessary, in accordance with the said article 4, to take measures to the extent strictly required by the exigencies of the situation, for the defence of the State and for the protection of life and property, including the exercise of powers of arrest and detention. In so far as any of these measures are inconsistent with article 9 of the Covenant, Israel thereby derogates from its obligations under that provision.” None of the States explicitly expressed the view that derogation was necessary in order to detain persons under the Third or Fourth Geneva Conventions. 42. As regards State practice, in her book, “Captured in War : Lawful Internment in Armed Conflict” (Hart Publishing, Editions A. Pedone, Paris and Oxford 2013) Els Debuf referred to a study she had undertaken of the derogations notified to the concerned authorities for the Convention and the ICCPR, as reflected in the United Nations’ and the Council of Europe’s online databases (last verified on 1 October 2010). She noted as follows: “Our research of these databases – focused on international armed conflicts and occupations in which States parties to the ICCPR and ECHR were involved since their date of ratification – has provided us with the following information .... Neither Afghanistan nor the Soviet Union derogated from the ICCPR during the conflict that opposed the two States from 1979 to 1989. Likewise, neither Afghanistan, Australia, Canada, Denmark, France, Germany, Italy, the Netherlands, New Zealand, the UK or the US derogated from the right to liberty under the ICCPR or the ECHR in relation to the international phase of the recent conflict in Afghanistan (2001-2002); the same is true for the conflict that opposed Iraq to the US, UK and other States from 2003 to 2004. The following States have also interned persons on the basis of the Third and the Fourth Geneva Conventions without derogating from the right to liberty in the ICCPR or ECHR: the UK and Argentina in the conflict over the Falklands/Malvinas islands in 1982; the US during its military operations in Grenada in 1983; India and Bangladesh in the conflicts with Pakistan in the 1970’s (Pakistan is not a party to the ICCPR); Iran and Iraq during the 1980-1988 war; Israel and the Arab States in any of the international armed conflicts opposing them in the Middle East (1948-today) [but note the derogation filed by Israel, set out in paragraph 40 above]; the States parties to the ECHR that participated under the umbrella of the UN in the Korean War from 1950 to 1953; Iraq, Kuwait, the US and the UK during the 1991 Gulf War (Saudi ‑ Arabia, which interned many prisoners of war during that conflict, is not a party to the ICCPR); Angola, Burundi, the Democratic Republic of the Congo (DRC), Namibia, Rwanda, Uganda and Zimbabwe in the DRC (1998-2003); Ethiopia in the conflict opposing it to Eritrea from 1998 to 2000 (Eritrea had not yet ratified the ICCPR at the time); Eritrea and Djibouti in the short border conflict in 2008; Georgia and Russia in the blitz war of August 2008; Russia did not derogate from the ICCPR in relation to the conflict with Moldova over Transdnistria in 1992 (Russia was not yet a party to the ECHR and Moldova was not yet a party to either the ICCPR or the ECHR at the time). Neither Cyprus nor Turkey derogated from the ICCPR or the ECHR to intern on the basis of GC III-IV in Northern-Cyprus (note that Turkey did not consider the ICCPR or the ECHR to apply extra-territorially); Turkey did derogate from the ECHR as far as persons within mainland Turkey were concerned but since it did not specify the articles from which it intended to derogate it is unclear whether it thought it necessary to do so in order to intern persons on the basis of GC III and IV. Similarly, Azerbaijan derogated from the ICCPR (it was not a party to the ECHR yet at the time) to take measures that were necessary as a result of the conflict with Armenia (1988 ‑ 1994), but it is unclear whether it did so to intern persons on the basis of the Geneva Conventions; Armenia did not derogate from the ICCPR (it was not yet a party to the ECHR at the time). Likewise, Nicaragua derogated from article 9 ICCPR, saying it was obliged to do so following the US involvement in the conflict with the Contras in the 1980s. It is unclear whether Nicaragua thought it necessary to derogate from the ICCPR to intern on the basis of the Geneva Conventions, in its notices of derogation it insisted that article 9§1 was only derogated from for offences against national security and public order.” THE LAW I. THE COURT’S ASSESSMENT OF THE EVIDENCE AND ESTABLISHMENT OF THE FACTS A. The parties’ submissions 1. The applicant 43. The applicant contended that the evidence of his sisters, friend and neighbour demonstrated that his brother was captured and detained by British forces with the purpose of inducing the applicant to surrender himself. The first reference made by the Government to the battalion record, which referred to Tarek Hassan’s arrest (see paragraph 11 above), was in its observations to the Grand Chamber in September 2013. No good explanation for the recent appearance of this material had been provided, which was surprising given the emphasis placed on the document by the Government. The applicant made no admissions as to whether or not he accepted it was genuine. He underlined, also, that it was the sole document to make any reference to Tarek Hassan’s having been found in possession of an AK-47 machine gun and positioned on the roof. Neither of the records of his interviews (see paragraphs 23-24 above) referred to his having been detained as a suspected combatant or having posed any threat, real or suspected, to British forces at any time. 44. The applicant further contended that the Camp Bucca computer detention records recorded three different release dates, none of which appeared reliable (see paragraph 28 above). Similarly, the place of release was a matter of speculation based on unclear and inconsistent evidence (see paragraphs 27-28 above). It could not even be said with any certainty that Tarek Hassan was not still being detained after the search of Camp Bucca on 12 May 2003, given in particular the release date entered on the United States records. The applicant pointed out that his brother was found dead with the United States Camp Bucca identity tag still on him (see paragraph 29 above) and that he had not contacted his family at any point after he had been captured by United Kingdom forces, which strongly suggested that he had had no opportunity to do so. 2. The Government 45. The Government submitted that the applicant had not established an adequate justification for the delay in raising his complaints with the United Kingdom authorities. The delay had imposed an inevitable impediment to the effective investigation of Tarek Hassan’s death. No adverse inferences should be drawn from the Government’s inability to provide an explanation for Tarek Hassan’s death in circumstances where the evidence provided a satisfying and convincing explanation of his arrest, detention and release. 46. The Government denied the allegation that Tarek Hassan was detained as a means of putting pressure on the applicant to surrender. They contended that the evidence submitted by the applicant in support of this claim was imprecise and hearsay and that such a purpose on the part of the United Kingdom authorities would have been inconsistent with Tarek Hassan’s subsequent release from Camp Bucca as soon as his status had been established as a civilian who did not pose a threat to security. Instead, they contended that it was reasonable for the British forces to suspect Tarek Hassan of being a combatant, since he was found, armed, on the roof of the house of a general of the Al-Quds Army, which house contained other firearms and a number of documents of intelligence value relating to local members of the Ba’ath Party (see paragraph 11 above). The Government further pointed out that, apart from the applicant’s witness statement, there was no independent evidence of the cause of death because this information had not been entered on the death certificate (see paragraph 29 above). In any event, they emphasised that Samara was some 700 kilometres from Camp Bucca, in an area that had never been occupied by British forces, and that the AK-47 machine gun was not a weapon used by British forces. B. The Court’s evaluation of the facts 47. At the outset, the Court recalls that the domestic proceedings were dismissed on the ground that the applicant’s brother did not fall within the jurisdiction of the United Kingdom at any material time (see paragraph 31 above). It was not therefore necessary for the national courts to establish the facts in any detail. The Court is generally sensitive to the subsidiary nature of its role and cautious in taking on the role of a first-instance tribunal of fact (see McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). However, in the present circumstances it is unavoidable that it must make some findings of fact of its own on the basis of the evidence before it. 48. In cases in which there are conflicting accounts of events, the Court is inevitably confronted when establishing the facts with the same difficulties as those faced by any first-instance court. It reiterates that, in assessing evidence, it has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard. Its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions the Court’s approach to the issues of evidence and proof. In the proceedings before it, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see El Masri v. “the former Yugoslav Republic of Macedonia ” [GC], no. 39630/09, § 151, ECHR 2012). 49. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (the principle, that is, that the burden of proof lies on the person making the allegation in question). The Court reiterates its case-law under Articles 2 and 3 of the Convention to the effect that where the events in issue lie within the exclusive knowledge of the authorities, as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation. In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government. The Court has already found that these considerations apply to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty. Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the respondent Government (see El Masri, cited above, §§ 152-153). 50. It is not in dispute in the present case that the applicant’s brother was captured by United Kingdom forces on 23 April 2003, subsequently detained at Camp Bucca and that he died shortly before his body was found in Samara on 1 September 2003. The disagreement over the facts centres on two issues: first, whether Tarek Hassan was arrested and detained as a means of exerting pressure on the applicant to surrender himself and, secondly, in what circumstances Tarek Hassan left Camp Bucca. In addition, since the applicant alleges that Tarek Hassan’s body had marks of ill-treatment on it, the question arises whether he was ill-treated while in detention. 51. As to the first point, the Court notes that the only evidence before it which supports the claim that Tarek Hassan was taken into detention in an attempt to force the applicant to surrender himself are the two statements made by the applicant and the note of a telephone interview with the applicant’s neighbour, both prepared for the purposes of the domestic proceedings (see paragraphs 12-13 above). In the applicant’s first statement he alleged that his sisters had been told by the British military authority that Tarek Hassan would not be released until the applicant gave himself up. In the second statement, the applicant claimed that this information was given to his neighbour and his friend. In neither of the applicant’s statements, nor that of his neighbour, Mr Al-Ubody, is the representative of the United Kingdom military who made the alleged assertion identified, by name or rank. Given the lack of precision, the hearsay nature of this evidence and the internal inconsistencies in the applicant’s statements, the Court does not find the evidence in support of the applicant’s claim to be strong. 52. For their part, the Government were not able to present the Court with any witness evidence relating to Tarek Hassan’s capture. However, they provided the Court with the operational log of the Black Watch Battalion which was created contemporaneously with the events in question (see paragraph 11 above). It records that, when British forces arrived at the house, Tarek Hassan was positioned on the roof, armed with an AK-47 machine gun and that other firearms and documents of intelligence value were found in the house. In addition, the Government provided records of interviews at Camp Bucca with Tarek Hassan and screen shots of entries relating to him on the AP3-Ryan database (see, respectively, paragraphs 23 ‑ 24 and 18, 22 and 28 above). The Court has no grounds on which to question the authenticity of these records. They show that Tarek Hassan was registered at Camp Bucca on 23 April 2003, taken to the JFIT compound at 16.40 on 23 April 2003 and released to the civilian holding area of Camp Bucca on 25 April 2003 at 8 p.m. local time. The computer records further show that he was questioned once on 23 April 2003 21.30 local time and again on 25 April at 8 a.m. local time. Records of both interviews have been provided to the Court. They show that Tarek Hassan’s identity as the applicant’s brother was known and that it was established in the course of questioning that he had no personal involvement with the Ba’ath Party or the Al-Quds Army. 53. In the Court’s view, the capture and questioning records are consistent with the Government’s submission that Tarek Hassan was captured as a suspected combatant or a civilian posing a threat to security. This view is supported by other evidence which tends to show that Tarek Hassan may well have been armed with, or at least in the possession of, an AK-47 machine gun at the moment of his capture, namely the applicant’s assertion that his younger brother had been left to protect the family home (see paragraph 10 above) and Tarek Hassan’s reported explanation, during his interrogation by British agents, of the presence of the weapon as being for personal protection (see paragraph 24 above). The Camp Bucca records further indicate that he was cleared for release as soon as it had been established that he was a civilian who did not pose a threat to security. 54. The Court accepts that Tarek Hassan’s capture was linked to his relationship with his brother, but only to the extent that the British forces, having been made aware of the relationship by Tarek Hassan himself and finding Tarek Hassan armed at the moment of capture (see paragraph 11 above), may have suspected that he also was involved with the Ba’ath Party and Al-Quds Army. The Court does not find that the evidence supports the claim that Tarek Hassan was taken into custody to be held until the applicant should surrender. If that had been the intention of the United Kingdom forces, he would not have been cleared for release immediately after the second interview and less than 38 hours after his admission to Camp Bucca (see paragraph 22 above). 55. As regards the date and place of Tarek Hassan’s release, the principal evidence consists of entries from AP3-Ryan (see paragraph 28 above). One entry made on 4 May 2003 recorded that Tarek Hassan had been released on 2 May 2003, by coach, to Umm Qasr, on the ground of the “End of Hostilities”. Another entry on 12 May 2003 found that Tarek Hassan was not present in the Camp when a full check of detainees was made. The Court considers, on the basis of these entries, taken together with the decision made following the second screening interview not to continue to detain Tarek Hassan, that he was in all probability released early in May 2003. This view is further supported by the evidence provided by the Government concerning the policy decision taken by United Kingdom forces to release all detainees prior to or immediately following the cessation of hostilities announced on 1 May 2003, save those suspected of criminal offences or of activities posing a risk to security (see paragraph 27 above). As to the place of release, the Court notes that Camp Bucca was situated only about 2.5 kilometres from Umm Qasr. Although the main text of the relevant military order relating to the release of detainees from Camp Bucca did not list Umm Qasr as a drop-off point (listing only four towns to the north of the Camp), the annex to the order did describe Umm Qasr as a release area. It is impossible to be certain in the absence of more conclusive evidence, but given the town’s proximity to the Camp, its mention in the annex, the United Kingdom policy of releasing detainees following the end of hostilities and the computer entries concerning Tarek Hassan’s release, the Court finds that it is probable that Tarek Hassan was released in or near Umm Qasr on 2 May 2003. 56. The Court is of the view that, in this case, since the evidence concerning Tarek Hassan’s detention and release was, for the most part, accessible only to the Government, the onus is on them to provide a plausible and satisfactory explanation as to what happened to Tarek Hassan in the Camp and to show that he was released and that the release followed a safe procedure (see paragraph 49 above). The computer records show that by 22 May 2003 the United Kingdom had captured and processed some 3,738 detainees in Iraq since the start of hostilities and had released all but 361 (see paragraph 28 above). In the light of the time that had elapsed before the applicant lodged his claim and the large number of United Kingdom detainees that were released from Camp Bucca around the end of April and the beginning of May 2003, it is unsurprising that no eye witness able to remember Tarek Hassan’s release has been traced. In the circumstances of the present case, the Court finds that the evidence referred to above is sufficient to satisfy the burden of proof on the Government. 57. Finally, there is no evidence before the Court to suggest that Tarek Hassan was ill-treated while in detention. The interview records show that he was questioned on two occasions, shortly after having been admitted to the Camp, and found to be a civilian, of no intelligence value and not posing any threat to security. The witness statement submitted by the applicant, of Mr Al-Saadoon, who claimed to have seen Tarek Hassan in the civilian holding area in Camp Bucca in the period after he was questioned and before he was released, makes no mention of any sign of injury on Tarek Hassan or any complaint by him of ill-treatment. Moreover, apart from the applicant’s witness statement, there is no evidence before the Court as to the cause of Tarek Hassan’s death or the presence of marks of ill-treatment on his body, since the death certificate contains no information on either point. Assuming the applicant’s description of his brother’s body to be accurate, the lapse of four months between Tarek Hassan’s release and his death does not support the view that his injuries were caused during his time in detention. 58. Having established the facts of the case, the Court must next examine the applicant’s complaints under the Convention. II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION A. The parties’ submissions 1. The applicant 59. The applicant complained that the circumstances of Tarek Hassan’s death gave rise to, at least, a prima facie violation of Articles 2 and 3 of the Convention, entailing an obligation on the Government to undertake an effective investigation. Article 2 of the Convention reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 60. The applicant emphasised that it was incumbent on the United Kingdom authorities, which had sole knowledge of what happened to Tarek Hassan following his arrest, to establish that he was alive when he left detention and that he was not released into a situation which exposed him to the risk of death or serious mistreatment. His disappearance and death following detention by the United Kingdom gave rise to a prima facie case that Tarek was either killed by or with the involvement of United Kingdom personnel or exposed to a real risk of death or mistreatment by United Kingdom personnel by being released in a remote or otherwise dangerous environment, or being transferred into the hands of a third party. This engaged two issues under Articles 2 and 3. First, if the Government were unable to provide a plausible alternative explanation of the events leading to Tarek Hassan’s death, then the United Kingdom should be held liable for it. Secondly, there was an arguable case of a violation of Articles 2 and 3, engaging the procedural obligation to investigate. 2. The Government 61. The Government submitted that, in a case such as the present, no duty to investigate could arise under Article 2 or 3 unless there was at least an arguable case that the United Kingdom was responsible for ill-treating Tarek Hassan or causing his death, or that Tarek Hassan’s death occurred in territory that was controlled by the United Kingdom. This was not, on the evidence, a case in which the death occurred in the custody of the State. Such deaths might warrant a lower threshold or trigger for the investigative duty, but this was not the case here. Tarek Hassan’s death occurred many months after his release and in circumstances where there was nothing pointing to United Kingdom State involvement in the death. B. The Court’s assessment 62. According to the Court’s case-law, the obligation to protect the right to life under Article 2, 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 agents of the State (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 163, ECHR 2011). In addition, Article 3 places a duty on the State to carry out an effective official investigation where an individual makes a “credible assertion” that he has suffered ill ‑ treatment in breach of that provision at the hands of State officials, or, in the absence of an express complaint, where there are other sufficiently clear indications that torture or ill-treatment might have occurred (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 IV and Members (97) of the Gldani Congregation of Jehovah’s Witnesses v. Georgia, no. 71156/01, § 97, 3 May 2007, and the cases cited therein). 63. In the present case, with reference to the facts as assessed above by the Court, there is no evidence to suggest that Tarek Hassan was ill-treated while in detention, such as to give rise to an obligation on the respondent State under Article 3 to carry out an official investigation. Nor is there any evidence that the United Kingdom authorities were responsible in any way, directly or indirectly, for Tarek Hassan’s death, which occurred some four months after he was released from Camp Bucca, in a distant part of the country not controlled by United Kingdom forces. In the absence of any evidence of the involvement of United Kingdom State agents in the death, or even of any evidence that the death occurred within territory controlled by the United Kingdom, no obligation to investigate under Article 2 can arise. 64. In conclusion, the Court considers that the complaints under Articles 2 and 3 of the Convention are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 2, 3 AND 4 OF THE CONVENTION 65. The applicant alleged that his brother’s capture by United Kingdom forces and detention in Camp Bucca gave rise to breaches of his rights under Article 5 §§ 1, 2, 3 and 4 of the Convention, which provide, as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The Government denied that Tarek Hassan fell within United Kingdom jurisdiction at any material time. In the alternative, they denied that his capture and detention, during an international armed conflict, gave rise to any violation of the provisions of Article 5. A. Jurisdiction 66. The applicant contended that at all material times his brother was within the jurisdiction of the United Kingdom, within the meaning of Article 1 of the Convention, which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” 1. The parties’ submissions (a) The applicant 67. The applicant submitted that Tarek Hassan fell within the United Kingdom’s jurisdiction under Article 1 by virtue of the application of the “effective control of an area” principle, as articulated by the Court in Al ‑ Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 138-140, ECHR 2011. He further submitted that the implication to be drawn from the judgment in Al-Skeini was that the United Kingdom had effective control over South East Iraq following the removal from power of the Ba’ath regime, which had been achieved by 1 May 2003. He pointed out that by 9 April 2003 coalition troops had taken control of Baghdad and that by mid ‑ April 2003, well before the capture of Tarek Hassan, statements made by the British Prime Minister and by the director of operations for the United States Joint Chiefs of Staff indicated that the coalition forces considered the war effectively over. With regard to the criteria identified by the Court as relevant to the question whether a State exercised effective control of an area, namely “the strength of the state’s military presence in the area” and “the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region”, there was no evidence of any significant practical difference between 23 April and 1 May 2003, and no good reason why there should be a difference in the legal position. 68. In the alternative, the applicant argued that jurisdiction was clearly established under the principle of State agent authority. It was the applicant’s submission that, according to the Court’s case-law, jurisdiction on this ground was not dependent on control over a building, area or vehicle but might also arise simply where there was physical control or authority over a person. Such authority and control over individuals did not have to be exclusive or total in order for jurisdiction to arise. Nor was it necessary for the State to be in a position to secure all the Convention rights to the person under its control. On this basis, the Court should reject the Government’s argument that bipartite or joint control was not sufficient for the purposes of Article 1 of the Convention. 69. The applicant submitted that, following his brother’s arrest during the night of 22/23 April 2003, when the latter was taken into the custody of United Kingdom soldiers, it could not realistically be disputed that the United Kingdom had authority and control, and therefore Article 1 jurisdiction, over him. In relation to the period after his admission to Camp Bucca, the United Kingdom continued to exercise authority and control over his detention. In particular, he was identified as a United Kingdom detainee on both the United Kingdom AP3-Ryan database and the United States Camp Buca database. The United Kingdom authorities were responsible for preparing a capture report and a detention report. Immediately upon his arrival at the Camp, he was taken to the JFIT compound, which was entirely controlled by United Kingdom forces, and he remained there until 25 April. Even following his transfer from the JFIT compound, he remained under United Kingdom control, since the United Kingdom authorities continued to assume responsibility over the well-being of United Kingdom detainees in Camp Bucca; they liaised with the ICRC about their treatment and the notification of their detention to their families; retained full rights of access and had a resident monitoring team at Camp Bucca to ensure compliance with domestic and international standards. The United Kingdom Provost Staff (military police) had an overseeing responsibility for United Kingdom detainees, on whom they checked daily, and United Kingdom detainees requiring medical attention would be treated in United Kingdom field hospitals. The United Kingdom also remained responsible for classifying detainees under Articles 4 and 5 of the Third Geneva Convention. There was nothing to suggest that the United States authorities asserted any basis of their own for detaining Tarek Hassan. The evidence of Major Wilson was that decisions as to whether to release a United Kingdom detainee were made by the United Kingdom. In Tarek Hassan’s case, it was JFIT which recommended he be released. Moreover, if a decision was made by the United Kingdom authorities to release a detainee, he could not simply be released by the United States, but had to be processed out of the Camp by the United Kingdom. In the applicant’s view, it was clear that in guarding and escorting United Kingdom detainees at Camp Bucca, the United States were acting as agents for the United Kingdom. This was confirmed by the fact that the United Kingdom would reimburse the United States for the costs involved in maintaining detainees. Holding detainees at the United States base was simply a matter of United Kingdom operational convenience. The position was no different in substance from the United Kingdom contracting-out the duties of guarding their detainees to private contractors. The United Kingdom could not contract out of its responsibility under the Convention for detainees and could not absolve itself of responsibility by placing detainees in the temporary custody of another organisation. (b) The Government 70. The Government emphasised that, according to the Court’s case-law, the exercise of extra-territorial jurisdiction remained exceptional. Furthermore, the concept of jurisdiction was not subject to the “living instrument” doctrine. In Al-Skeini, cited above, the Court found that the United Kingdom had jurisdiction in relation to the deaths of the applicants’ relatives because of a combination of two fact-specific circumstances. The first key element was the fact that the United Kingdom had, from 1 May 2003 until 24 June 2004, assumed authority and responsibility for the maintenance of security in South East Iraq as an occupying power. The second element was the fact that the deaths occurred during the course of security operations carried out by British forces pursuant to that assumption of authority and responsibility. In the absence of either of these factors, there would have been no jurisdictional link. In particular, the Court did not find jurisdiction on the basis of the “effective control of an area” doctrine and referred expressly to the findings of the Court of Appeal in the domestic Al-Skeini proceedings, that it would have been “utterly unreal” to suggest that in May 2003 the United Kingdom was in effective control and was obliged to secure to everyone in Basrah the rights and freedoms guaranteed by the Convention. On 23 April 2003, when the applicant’s brother was arrested, the United Kingdom had not yet assumed responsibility for security operations in South East Iraq; this did not take place until 1 May 2003. 71. The Government acknowledged that the Court had held that one situation where there might be jurisdiction under Article 1 was where the Contracting State’s agents operating outside its territory exercised “total and exclusive control” or “full and exclusive control” over an individual, for example where an individual was in the custody of the Contracting State’s agents abroad. However, they submitted that this basis of jurisdiction did not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State in question were operating in territory of which they were not the occupying power. In such a case, the conduct of the Contracting State would, instead, be subject to all the requirements of international humanitarian law. Thus, anything occurring before 1 May 2003, including Tarek Hassan’s capture, transfer to United States custody in Camp Bucca and questioning by British forces on 25 April 2003, was not within the United Kingdom’s jurisdiction for the purposes of Article 1 of the Convention. 72. In addition, the Government contended that Tarek Hassan did not fall within United Kingdom jurisdiction following his admission to Camp Bucca on the separate ground that, at that time, he was transferred to the custody of the United States and ceased to be exclusively, or even primarily, under United Kingdom control. According to the Government, the Court’s case-law required that a Contracting State’s agents operating outside its territory exercise “total and exclusive control” or “full and exclusive control” over an individual in order for jurisdiction to be established; bipartite or joint control was not sufficient to establish jurisdiction for the purposes of Article 1. These conclusions were not affected by the fact that under paragraph 4 of the MOA (see paragraph 16 above) the United Kingdom could have requested the return of Tarek Hassan to its custody from the United States. There was no evidence that the United Kingdom had ever made such a request. Moreover, the fact that provision for making such a request was included in the MOA provided the clearest indication that, for as long as the person concerned remained under United States custody and control, he was not within the jurisdiction of the United Kingdom. This position of principle was supported by Article 12 of the Third Geneva Convention (see paragraph 33 above). The first paragraph of Article 12 stated that the “Detaining Power is responsible for the treatment given” to prisoners of war. However, the second paragraph made it clear that, following the transfer of a prisoner of war by the Detaining Power to another State Party to the Convention, “responsibility for the application of the Convention rests on the Power accepting them while they are in its custody”. Thus, during the time that Tarek Hassan was detained at Camp Bucca, responsibility for the application of the Third and Fourth Geneva Conventions in respect of him rested on the United States. 73. In any event, the Government contended that from 25 April 2003, when Tarek Hassan was determined to be a civilian who should be released, and was moved to the civilian holding area in Camp Bucca, neither the United Kingdom nor the United States purported to exercise a legal right to detain him. He stayed at the Camp only because the security situation rendered it irresponsible simply to have released him immediately. He was no longer being detained, but was in Camp Bucca awaiting transport to his place of capture. Similarly, while he was being transported by coach by United Kingdom forces to the place of his release, he was a free person and was not in the custody or control, or under the jurisdiction, of the United Kingdom. 2. The Court’s assessment 74. The Court recalls that in Al-Skeini, cited above, §§ 130-142, it summarised the applicable principles on jurisdiction within the meaning of Article 1 of the Convention exercised outside the territory of the Contracting State 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). The statement of principle, as it appears in Drozd and Janousek and the other cases just cited, is very broad: the Court states merely that the Contracting Party’s responsibility ‘can be involved’ in these circumstances. It is necessary to examine the Court’s case-law to identify the defining principles. 134. First, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others ( Banković, cited above, § 73; see also X v. Federal Republic of Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook of the European Convention on Human Rights, vol. 8, pp. 158 and 169; X v. the United Kingdom, no. 7547/76, Commission decision of 15 December 1977; WM v. Denmark, no. 17392/90, Commission decision of 14 October 1993). 135. Secondly, the 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. 137. It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 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). (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). 140. The ‘effective control’ principle of jurisdiction set out above does not replace the system of declarations under Article 56 of the Convention (formerly Article 63) which the States decided, when drafting the Convention, to apply to territories overseas for whose international relations they were responsible. Article 56 § 1 provides a mechanism whereby any State may decide to extend the application of the Convention, ‘with due regard ... to local requirements’, to all or any of the territories for whose international relations it is responsible. The existence of this mechanism, which was included in the Convention for historical reasons, cannot be interpreted in present conditions as limiting the scope of the term ‘jurisdiction’ in Article 1. The situations covered by the ‘effective control’ principle are clearly separate and distinct from circumstances where a Contracting State has not, through a declaration under Article 56, extended the Convention or any of its Protocols to an overseas territory for whose international relations it is responsible (see Loizidou (preliminary objections ), cited above, §§ 86-89 and Quark Fishing Ltd v. the United Kingdom (dec.), no. 15305/06, ECHR 2006-...). (δ) The Convention legal space (‘ espace juridique’ ) 141. The Convention is a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86). 142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘Convention legal space’ (see Loizidou (merits), cited above, §78; Banković, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction (see amongst other examples Öcalan, Issa, Al-Saadoon and Mufdhi, Medvedyev, all cited above).” 75. In Al-Skeini, cited above, the Court found that the applicants’ relatives fell within United Kingdom jurisdiction because during the period 1 May 2003-28 June 2004 the United Kingdom had assumed authority for the maintenance of security in South East Iraq and the relatives were killed in the course of security operations carried out by United Kingdom troops pursuant to that assumption of authority ( Al-Skeini §§ 143-150). In the light of this finding, it was unnecessary to determine whether jurisdiction also arose on the ground that the United Kingdom was in effective military control of South East Iraq during that period. However, the statement of facts in Al-Skeini included material which tended to demonstrate that the United Kingdom was far from being in effective control of the south-eastern area which it occupied, and this was also the finding of the Court of Appeal, which heard evidence on this question in the domestic Al ‑ Skeini proceedings (see Al ‑ Skeini, cited above, §§ 20-23 and § 80). The present case concerns an earlier period, before the United Kingdom and its coalition partners had declared that the active hostilities phase of the conflict had ended and that they were in occupation, and before the United Kingdom had assumed responsibility for the maintenance of security in the South East of the country (see Al-Skeini, cited above, §§ 10-11). However, as in Al-Skeini, the Court does not find it necessary to decide whether the United Kingdom was in effective control of the area during the relevant period, because it finds that the United Kingdom exercised jurisdiction over Tarek Hassan on another ground. 76. Following his capture by British troops early in the morning of 23 April 2003, until he was admitted to Camp Bucca later that afternoon, Tarek Hassan was within the physical power and control of the United Kingdom soldiers and therefore fell within United Kingdom jurisdiction under the principles outlined in paragraph 136 of Al-Skeini, set out above. The Government, in their observations, acknowledged that where State agents operating extra-territorially take an individual into custody, this is a ground of extra ‑ territorial jurisdiction which has been recognised by the Court. However, they submitted that this basis of jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State are operating in territory of which they are not the occupying power, and where the conduct of the State will instead be subject to the requirements of international humanitarian law. 77. The Court is not persuaded by this argument. Al-Skeini was also concerned with a period when international humanitarian law was applicable, namely the period when the United Kingdom and its coalition partners were in occupation of Iraq. Nonetheless, in that case the Court found that the United Kingdom exercised jurisdiction under Article 1 of the Convention over the applicants’ relatives. Moreover, to accept the Government’s argument on this point would be inconsistent with the case ‑ law of the International Court of Justice, which has held that international human rights law and international humanitarian law may apply concurrently (see paragraphs 35-37 above). As the Court has observed on many occasions, the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see, for example, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI). This applies equally to Article 1 as to the other articles of the Convention. 78. With regard to the period after Tarek Hassan entered Camp Bucca, the Government raise an alternative ground for excluding jurisdiction, namely that his admission to the Camp involved a transfer of custody from the United Kingdom to the United States. However, notwithstanding the Government’s textual arguments based on the terms of the MOA and on Article 12 of the Third Geneva Convention (see paragraphs 16, 33 and 72 above), the Court is of the view that, having regard to the arrangements operating at Camp Bucca, during this period Tarek Hassan continued to fall under the authority and control of United Kingdom forces. He was admitted to the Camp as a United Kingdom prisoner. Shortly after his admission, he was taken to the JFIT compound, which was entirely controlled by United Kingdom forces (see paragraph 15 above). In accordance with the MOA which set out the various responsibilities of the United Kingdom and the United States in relation to individuals detained at the Camp, the United Kingdom had responsibility for the classification of United Kingdom detainees under the Third and Fourth Geneva Conventions and for deciding whether they should be released (see paragraph 16 above). This is what happened following Tarek Hassan’s interrogation at the JFIT compound, when the United Kingdom authorities decided that he was a civilian who did not pose a threat to security and ordered that he should be released as soon as practicable. While it is true that certain operational aspects relating to Tarek Hassan’s detention at Camp Bucca were transferred to United States forces, in particular the tasks of escorting him to and from the JFIT compound and guarding him elsewhere in the Camp, the United Kingdom retained authority and control over all aspects of the detention relevant to the applicant’s complaints under Article 5. 79. Finally, the Court notes the Government’s argument that once Tarek Hassan had been cleared for release and taken to the civilian holding area, he was no longer a detainee and therefore fell outside United Kingdom jurisdiction. In the Court’s view, however, it appears clear that Tarek Hassan remained in the custody of armed military personnel and under the authority and control of the United Kingdom until the moment he was let off the bus that took him from the Camp. 80. In conclusion, therefore, the Court finds that Tarek Hassan fell within the jurisdiction of the United Kingdom from the moment of his capture by United Kingdom troops, at Umm Qasr on 23 April 2003, until his release from the bus that took him from Camp Bucca to the drop-off point, most probably Umm Qasr on 2 May 2003 (see paragraph 55 above). B. The merits of the complaints under Article 5 §§ 1, 2, 3 and 4 1. The parties’ submissions (a) The applicant 81. The applicant did not accept that Tarek Hassan’s arrest and detention fell within the active combat phase of an international armed conflict, since by 9 April 2003 coalition troops had taken control of Baghdad and removed the Ba’ath Party from power. However, even if the arrest and detention of Tarek Hassan had taken place in the active combat phase, this would not displace the application of the Convention. Article 15 created a specific power to take measures derogating from the Convention to the extent strictly required by the exigencies of “war or other public emergency threatening the life of the nation”. There had been no derogation in this case and there could be no implied displacement of Convention rights. It was important to remember the historical context in which the Convention was drafted, namely the aftermath of a global conflict. With the memory of war still fresh, the drafters addressed their minds to the question whether the fundamental rights the Convention recognised should apply differently in wartime and decided that they should only (i) insofar as necessary to deal with the exigencies of a war or public emergency, (ii) provided the State’s other obligations under international law were respected and (iii) provided the State derogated formally and openly. The result was Article 15. If the drafters had intended to create a regime under which human rights would automatically be displaced or re-written in times of international conflict, they would have done so. 82. The applicant did not accept that there was any evidence of State practice by High Contracting Parties to the effect that the Convention need not be complied with in detaining actual or suspected combatants in the course of international armed conflict. Even if there were, there was no evidence of accompanying opinio juris. Moreover, even if there were both, the function of the Court under Article 19 was to ensure the observance of the Convention, not to apply it only where States were in the habit of applying it. Nor did the Court’s case-law, for example Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 185, ECHR 2009, assist the Government’s case. In Varnava the Court held that the relevant rules of international humanitarian law expanded the obligations on States under Article 2; it did not support the proposition that fundamental rights were automatically curtailed in wartime. Inherent in the concept of “interpreting a provision in so far as possible in the light of general principles of international law” was recognition that there was a range of possible meanings and that some proposed interpretations would fall outside that range. The Government’s “displacement” argument was essentially that Convention rights must be read as if they contained a wide “wartime” exception which they did not actually contain. Such an approach was not supported by Varnava. Finally, the applicant submitted that the Government’s reliance on the International Court of Justice’s advisory opinion on The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory was hard to understand, since in that opinion the International Court of Justice expressly found that derogation was the only means of displacing a provision of international human rights law (see paragraph 36 above). 83. The Court had often applied the Convention in situations of armed conflict and recognised that in principle it was not displaced (the applicant referred to the following cases: Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 85 and 319, 6 April 2004; 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, § 191, ECHR 2009; Al-Jedda, cited above, § 105; Al-Skeini, cited above, §§ 164-167). This was, moreover, supported by the advisory opinion of the International Court of Justice in The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, § 106 (see paragraph 36 above). In the applicant’s submission, the International Court of Justice was recognising in this passage that there might be some rights that fall within the scope of international humanitarian law but to which no human rights convention extended. In the applicant’s view, the position was that at most, the provisions of international humanitarian law might influence the interpretation of the provisions of the Convention. For example, they might be relevant in determining what acts were strictly required by the exigencies of the situation for the purposes of a derogation from Article 2. In the context of Article 5, this might, in an appropriate case, inform the Court’s interpretation of “competent legal authority” and “offence” in Article 5 § 1(c). However, it was not right that Article 5 was displaced in circumstances in which the Geneva Conventions were engaged. The Convention was a treaty aimed at protecting fundamental rights. Its provisions should not be distorted, still less ignored altogether, to make life easier for States which failed to use the mechanism within the Convention that expressly dictated how they were to reconcile its provisions with the exigencies of war. 84. The applicant further contended that, in any event, the Government had not identified anything that United Kingdom forces were required to do by the Geneva Conventions that would have obliged them to act contrary to Article 5. The Iraq war was a non-international armed conflict following the collapse of Saddam Hussein’s forces and the occupation by coalition forces. There was considerably less treaty law applicable to non-international armed conflicts than to international armed conflicts. International humanitarian law stipulated minimum requirements on States in situations of armed conflict but did not provide powers. In reality, the Government’s submission that the Convention should be “displaced” was an attempt to re ‑ argue the question of Article 1 jurisdiction which was decided in Al ‑ Skeini (cited above). If the Government’s position were correct, it would have the effect of wholly depriving victims of a contravention of any effective remedy, since the Third and Fourth Geneva Conventions were not justiciable at the instance of an individual. Such a narrowing of the rights of individuals in respect of their treatment by foreign armed forces would be unprincipled and wrong. 85. Finally, even if the Court were to decide that Article 5 should be interpreted in the light of the Third and Fourth Geneva Conventions, Tarek Hassan was arrested and detained as a means of inducing the applicant to surrender. The detention was arbitrary, it did not fall within any of the lawful categories under Article 5 § 1 and it was not even permissible under international humanitarian law. (b) The Government 86. The Government submitted that the drafters of the Convention did not intend that an alleged victim of extra-territorial action in the active phase of an international armed conflict, such as a prisoner of war protected by the Third Geneva Convention, who might nonetheless wish to allege a breach of Article 5, would benefit from the protections of the Convention. There was nothing to suggest any such intent within the Convention or its travaux préparatoires, or indeed in the wording or travaux préparatoires of the 1949 Geneva Conventions, which would have been at the forefront of the minds of those drafting the Convention as establishing the relevant applicable legal regime. Furthermore, such intent would be inconsistent with the practical realities of conduct of active hostilities in an international armed conflict, and also with such Convention jurisprudence as there was bearing on the issue. 87. It was the Government’s primary contention that the relevant events took place outside the jurisdiction of the United Kingdom. In the alternative, if the Court were to find that the United Kingdom had jurisdiction over Tarek Hassan during his detention, the Government contended that Article 5 had to be interpreted and applied in conformity and harmony with international law. Where provisions of the Convention fell to be applied in the context of an international armed conflict, and in particular the active phase of such a conflict, the application had to take account of international humanitarian law, which applied as the lex specialis, and might operate to modify or even displace a given provision of the Convention. Thus, in Cyprus v. Turkey, nos. 6780/74 and 6950/75, Report of the Commission of 10 July 1976, volume 1, the Commission did not consider it necessary to address the question of breach of Article 5 where persons were detained under the Third Geneva Convention in the context of the taking of prisoners of war. Moreover, it had been the consistent approach of the International Court of Justice that international humanitarian law applied as lex specialis in the context of an international armed conflict in circumstances where a given human rights treaty also applied. This view was supported by the Report of the Study Group of the International Law Commission on the “Fragmentation of International Law” (see paragraph 38 above) and by academic writers, such as the authors of Fleck’s “The Handbook of International Humanitarian Law” and Gill and Fleck’s “The Handbook of the International Law of Military Operations”. 88. The Government argued that the right to liberty under Article 5 of the Convention had to be considered in the context of the fundamental importance of capture and detention of actual or suspected combatants in armed conflict. It could not be, and it was not so, that a Contracting State, when its armed forces were engaged in active hostilities in an armed conflict outside its own territory, had to afford the procedural safeguards of Article 5 to enemy combatants whom it took as prisoners of war, or suspected enemy combatants whom it detained pending determination of whether they were entitled to such status. In addition, insofar as the issue arose in the present case, the same principle had to apply in relation to the detention of civilians where this was “absolutely necessary” for security reasons, in accordance with Article 42 of the Fourth Geneva Convention (see paragraph 33 above). In the present case, since Tarek Hassan was captured and initially detained as a suspected combatant, Article 5 was displaced by international humanitarian law as lex specialis, or modified so as to incorporate or allow for the capture and detention of actual or suspected combatants in accordance with the Third and/or Fourth Geneva Conventions, such that there was no breach by the United Kingdom with respect to the capture and detention of Tarek Hassan. 89. In the alternative, if the Court were to find that Article 5 applied and was not displaced or modified in situations of armed conflict, the Government submitted that the list in Article 5 § 1 of permissible purposes of detention had to be interpreted in such a way that it took account of and was compatible with the applicable lex specialis, namely international humanitarian law. The taking of prisoners of war pursuant to the Third Geneva Convention, and the detention of civilians pursuant to the Fourth Geneva Convention, had to be a lawful category of detention under Article 5 § 1; it fell most readily as a “lawful detention” within Article 5 § 1(c). In this special context, the concept of “offence” within that provision could correctly be interpreted to include participation as an enemy combatant and/or challenging the security of the Detaining Power within Article 42 of the Fourth Geneva Convention. The key question for the purposes of Article 5 § 1 would then be whether the detention of Tarek Hassan was a “lawful detention” in the context of an international armed conflict; the Government submitted that it evidently was. Tarek Hassan was encountered by British forces as a “gunman”, armed with an AK-47 machine gun, on the roof of a house belonging to a general of the Al-Quds Army, where firearms as well as intelligence material were found. He was captured as a suspected combatant and British forces were lawfully entitled under international humanitarian law to capture and detain him until his status was finally determined. 90. The Government recognised that difficult issues might arise as to the applicability of Article 15 in relation to a case such as the present. Consistently with the practice of all other Contracting Parties which had been involved in such operations, the United Kingdom had not derogated; there had been no need to do so, since the Convention could and did accommodate detention in such cases, having regard to the lex specialis, international humanitarian law. The inclusion of Article 15 in the Convention in no sense indicated that, in time of war or public emergency threatening the life of the nation, obligations under the Convention would at all times be interpreted in exactly the same way as in peacetime. Any argument that, unless there had been a derogation under Article 15, Article 5 should be interpreted and applied regardless of the context and the detailed rules of international humanitarian law governing detention of suspected combatants would risk diminishing the protections available to combatants or civilians (in effect, by precipitating derogations by concerned States). It would also be inconsistent with a seemingly universal State practice in terms of the detention of actual or suspected combatants in international armed conflicts, as well as the jurisprudence of the Court and the International Court of Justice, which had made it clear that the application of international humanitarian law as lex specialis was a general principle, and not one that depended on whether there had been a derogation under an applicable human rights treaty. (c) The third party 91. In the third party submissions filed in the present case, the Human Rights Centre of the University of Essex emphasised that, as the Court had held in its case-law, the Convention should be interpreted in harmony with other rules of public international law, of which it forms part. Such a principle was desirable and necessary, to avoid States being faced with irreconcilable legal obligations and controversial results. This was particularly important with relation to the detention regime applicable in international armed conflicts, since this regime was specifically designed for the situation in question and since the Third and Fourth Geneva Conventions enjoyed universal ratification. There was one sentence in the Court’s judgment in Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 107, ECHR 2011, which might be read as suggesting that the Court would only take account of international humanitarian law where it imposed an obligation, and not where it authorised a course of conduct, namely where it was stated: “... the Court does not find it established that international humanitarian law places an obligation on an Occupying Power to use indefinite internment without trial”. However, it was the view of the third party that, in the context of the judgment, it appeared that the Court was not looking at international humanitarian law in its own right but as a source of possible rules which could be read into a Security Council resolution. The United Kingdom Government could have chosen to raise international humanitarian law as an independent basis for detention but chose instead to rely exclusively on the Security Council resolution. The sentence quoted from Al-Jedda did not indicate that the Court would take account of international humanitarian law only where it imposed an obligation on States. 92. The third party pointed out that, in common with many areas of international law which had been developed as comprehensive regimes for particular fields of activity, the law of armed conflict and international humanitarian law (hereafter, “international humanitarian law”) had developed its own internal coherence and understandings. The key underlying assumption was that this law represented a balance between military necessity and humanitarian considerations. This meant that there could be no appeal to military necessity outside the treaty rule, which itself took account of military exigencies. A second underlying principle was that this field of law was based not on rights, but on the obligations of parties to a conflict. Thirdly, the rules applicable to an individual depended on his status as a member of a group, for example a combatant or a civilian. Fourth, while reference was often made to the “principles” of international humanitarian law, the principles themselves were not legal rules; the rules were to be found in treaty provisions which represented the articulation of those principles in legally binding form. It was clear, therefore, that the internal coherence of international humanitarian law was significantly different from that of human rights law. 93. Of the relationships between various fields of international law, that between international humanitarian law and international human rights law was not alone in being problematical, but it had received the most attention. By virtue of the express terms of certain human rights treaties, they continued to apply in situations of “war or other public emergency”, while the rules on international armed conflicts applied whenever there was an armed conflict between two or more States, including where one State occupied part or all of the territory of another. This meant that certain human rights treaties remained applicable, possibly in a modified way, in circumstances in which the law of armed conflict was also applicable. The International Court of Justice had addressed the relationship on three occasions (see paragraphs 35-37 above). Certain elements emerged clearly from this case-law. First, that the applicability of international humanitarian law did not displace the jurisdiction of a human rights body. That resulted from the finding that human rights law remained applicable in all circumstances. Secondly, where international humanitarian law was applicable, a human rights body had two choices. Either it had to apply human rights law through the lens of international humanitarian law or it had to blend human rights law and international humanitarian law together. That was the only possible interpretation of certain matters being the province of both bodies of rules, whilst others were regulated by international humanitarian law. The reference to lex specialis was unhelpful, which might account for the fact that the International Court of Justice did not refer to it in the Congo judgment (see paragraph 37 above). Use of this term had served to obfuscate the debate rather than provide clarification. 94. The International Court of Justice had provided apparently conflicting guidance on the question of the need for derogation before a State could rely on international humanitarian law. If the basis for using international humanitarian law at all was that human rights bodies should take account of other areas of international law, that might be thought to point to its use whether or not a State had derogated and whether or not it invoked international humanitarian law. On the other hand, where the State had done neither, the human rights body might wish to refer to the applicability of international humanitarian law, whilst saying that the State had chosen to be judged by the higher standard of peacetime human rights law, although such an approach might run the risk of appearing disconnected from reality. Where the State had not derogated but had relied on international humanitarian law, it would be open to the human rights body either to take account of international humanitarian law or to insist that the only way of modifying international human rights obligations was by derogation. 95. As regards the interplay between the two regimes, there could be no single applicable rule. Any given situation was likely to require elements of both bodies of law working together, but the balance and interplay would vary. Accordingly, there might be situations, such as the detention of prisoners of war, in which the combination of criteria lead to the conclusion that international humanitarian law would carry more weight, and determination of human rights violations regarding issues such as grounds and review of detention would be based on the relevant rules of international humanitarian law. Even in such contexts, however, human rights law would not be under absolute subjection to international humanitarian law. For example, if there were allegations of ill treatment, human rights law would still assist in determining issues such as the specificities of the acts which constituted a violation. From the perspective of the human rights body, it would be advantageous to use human rights law as the first step to identify the issues that needed to be addressed, for example, periodicity of review of lawfulness of detention, access to information about reasons of detention, legal assistance before the review mechanism. The second step would be to undertake a contextual analysis using both international humanitarian law and human rights law, in the light of the circumstances of the case at hand. On condition that the human rights body presented its analysis with sufficient coherence and clarity, the decisions generated would provide guidance to both States and armed forces ahead of future action. It went without saying that the approaches and the result had to be capable of being applied in practice in situations of armed conflict. 2. The Court’s assessment (a) The general principles to be applied 96. Article 5 § 1 of the Convention sets out the general rule that “[e]veryone has the right to liberty and security of the person” and that “[n]o one shall be deprived of his liberty” except in one of the circumstances set out in sub-paragraphs (a) to (f). 97. It has long been established that the list of grounds of permissible detention in Article 5 § 1 does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time (see Lawless v. Ireland (no. 3), 1 July 1961, §§ 13 and 14, Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, § 196, Series A no. 25; Guzzardi v. Italy, 6 November 1980, § 102, Series A no. 39; Jėčius v. Lithuania, no. 34578/97, §§ 47-52, ECHR 2000-IX; and Al ‑ Jedda, cited above, § 100). Moreover, the Court considers that there are important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict. It does not take the view that detention under the powers provided for in the Third and Fourth Geneva Conventions is congruent with any of the categories set out in subparagraphs (a) to (f). Although Article 5 § 1(c) might at first glance seem the most relevant provision, there does not need to be any correlation between security internment and suspicion of having committed an offence or risk of the commission of a criminal offence. As regards combatants detained as prisoners of war, since this category of person enjoys combatant privilege, allowing them to participate in hostilities without incurring criminal sanctions, it would not be appropriate for the Court to hold that this form of detention falls within the scope of Article 5 § 1(c). 98. In addition, Article 5 § 2 requires that every detainee should be informed promptly of the reasons for his arrest and Article 5 § 4 requires that every detainee should be entitled to take proceedings to have the lawfulness of his detention decided speedily by a court. Article 15 of the Convention provides that “[i]n time of war or other public emergency threatening the life of the nation”, a Contracting State may take measures derogating from certain of its obligations under the Convention, including Article 5. In the present case, the United Kingdom did not purport to derogate under Article 15 from any of its obligations under Article 5. 99. This is the first case in which a respondent State has requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law. In particular, in Al-Jedda, cited above, the United Kingdom Government did not contend that Article 5 was modified or displaced by the powers of detention provided for by the Third and Fourth Geneva Conventions. Instead they argued that the United Kingdom was under an obligation to the United Nations Security Council to place the applicant in internment and that, because of Article 103 of the United Nations Charter, this obligation had to take primacy over the United Kingdom’s obligations under the Convention. It was the Government’s case that an obligation to intern the applicant arose from the text of United Nations Security Council Resolution 1546 and annexed letters and also because the Resolution had the effect of maintaining the obligations placed on occupying powers under international humanitarian law, in particular Article 43 of the Hague Regulations (see Al-Jedda, cited above, § 107). The Court found that no such obligation arose. It was only before the Commission, in Cyprus v. Turkey, nos. 6780/74 and 6950/75, Report of the Commission of 10 July 1976, volume 1, that a question arose similar to that in the present case, namely whether it was compatible with the obligations under Article 5 of the Convention to detain a person under the Third and Fourth Geneva Conventions in the absence of a valid derogation under Article 15 of the Convention. In its report, the Commission refused to examine possible violations of Article 5 with regard to detainees accorded prisoner of war status, and took account of the fact that both Cyprus and Turkey were parties to the Third Geneva Convention (see § 313 of the Report). The Court has not, until now, had the opportunity to review the approach of the Commission and to determine such a question itself. 100. The starting point for the Court’s examination must be its constant practice of interpreting the Convention in the light of the rules set out in the Vienna Convention on the Law of Treaties of 23 May 1969 (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, § 29, and many subsequent cases). Article 31 of the Vienna Convention, which contains the “general rule of interpretation” (see paragraph 34 above), provides in paragraph 3 that 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; and (c) any relevant rules of international law applicable in the relations between the parties. 101. There has been no subsequent agreement between the High Contracting Parties as to the interpretation of Article 5 in situations of international armed conflict. However, in respect of the criterion set out in Article 31 § 3(b) of the Vienna Convention (see paragraph 34 above), the Court has previously stated that a consistent practice on the part of the High Contracting Parties, subsequent to their ratification of the Convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the Convention (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, §§ 102-103, Series A no. 161 and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 120, ECHR 2010). The practice of the High Contracting Parties is not to derogate from their obligations under Article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflicts. As the Court noted in Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 62, ECHR 2001 ‑ XII, although there have been a number of military missions involving Contracting States acting extra ‑ territorially since their ratification of the Convention, no State has ever made a derogation pursuant to Article 15 of the Convention in respect of these activities. The derogations that have been lodged in respect of Article 5 have concerned additional powers of detention claimed by States to have been rendered necessary as a result of internal conflicts or terrorist threats to the Contracting State (see, for example, Brannigan and McBride v. the United Kingdom, 26 May 1993, Series A no. 258 ‑ B; Aksoy v. Turkey, 18 December 1996, Reports of Judgments and Decisions 1996-VI; and A. and Others v. the United Kingdom [GC], no. 3455/05, ECHR 2009; see also paragraphs 40-41 above). Moreover, it would appear that the practice of not lodging derogations under Article 15 of the Convention in respect of detention under the Third and Fourth Geneva Conventions during international armed conflicts is mirrored by State practice in relation to the International Covenant for the Protection of Civil and Political Rights. Similarly, although many States have interned persons pursuant to powers under the Third and Fourth Geneva Conventions in the context of international armed conflicts subsequent to ratifying the Covenant, no State has explicitly derogated under Article 4 of the Covenant in respect of such detention (see paragraph 42 above), even subsequent to the advisory opinions and judgment referred to above, where the International Court of Justice made it clear that States’ obligations under the international human rights instruments to which they were parties continued to apply in situations of international armed conflict (see paragraphs 35-37 above). 102. Turning to the criterion contained in Article 31 § 3(c) of the Vienna Convention (see paragraph 34 above), the Court has made it clear on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part (see paragraph 77 above). This applies no less to international humanitarian law. The four Geneva Conventions of 1949, intended to mitigate the horrors of war, were drafted in parallel to the European Convention on Human Rights and enjoy universal ratification. The provisions in the Third and Fourth Geneva Conventions relating to internment, at issue in the present application, were designed to protect captured combatants and civilians who pose a security threat. The Court has already held that Article 2 of the Convention should “be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally-accepted role in mitigating the savagery and inhumanity of armed conflict” (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, § 185, ECHR 2009), and it considers that these observations apply equally in relation to Article 5. Moreover, the International Court of Justice has held that the protection offered by human rights conventions and that offered by international humanitarian law co-exist in situations of armed conflict (see paragraphs 35-37 above). In its judgment Armed Activities on the Territory of the Congo, the International Court of Justice observed, with reference to its advisory opinion concerning The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, that “[a]s 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” (see paragraphs 36 and 37 above). The Court must endeavour to interpret and apply the Convention in a manner which is consistent with the framework under international law delineated by the International Court of Justice. 103. In the light of the above considerations, the Court accepts the Government’s argument that the lack of a formal derogation under Article 15 does not prevent the Court from taking account of the context and the provisions of international humanitarian law when interpreting and applying Article 5 in this case. 104. Nonetheless, and consistently with the case-law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co-existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The Court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by Article 5 of the Convention without the exercise of the power of derogation under Article 15 (see paragraph 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 could be interpreted as permitting the exercise of such broad powers. 105. As with the grounds of permitted detention already set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law must be “lawful” to preclude a violation of Article 5 § 1. This means that the detention must comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purpose of Article 5 § 1, which is to protect the individual from arbitrariness (see, for example, Kurt v. Turkey, 25 May 1998, § 122, Reports of Judgments and Decisions 1998 ‑ III; El-Masri, cited above, § 230; see also Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67-74, ECHR 2008, and the cases cited therein). 106. As regards procedural safeguards, the Court considers that, in relation to detention taking place during an international armed conflict, Article 5 §§ 2 and 4 must also be interpreted in a manner which takes into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provide that internment “shall be subject to periodical review, if possible every six months, by a competent body”. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent “court” in the sense generally required by Article 5 § 4 (see, in the latter context, Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005 ‑ XII), nonetheless, if the Contracting State is to comply with its obligations under Article 5 § 4 in this context, the “competent body” should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay. While the applicant in addition relies on Article 5 § 3, the Court considers that this provision has no application in the present case since Tarek Hassan was not detained in accordance with the provisions of paragraph 1(c) of Article 5. 107. Finally, although, for the reasons explained above, the Court does not consider it necessary for a formal derogation to be lodged, the provisions of Article 5 will be interpreted and applied in the light of the relevant provisions of international humanitarian law only where this is specifically pleaded by the respondent State. It is not for the Court to assume that a State intends to modify the commitments which it has undertaken by ratifying the Convention in the absence of a clear indication to that effect. (b) Application of these principles to the facts of the case 108. The Court’s starting point is to observe that during the period in question in Iraq, all parties involved were High Contracting Parties to the Four Geneva Conventions, which apply in situations of international armed conflict and partial or total occupation of the territory of a High Contracting Party (see Article 2, common to the four Geneva Conventions, set out in paragraph 33 above). It is clear, therefore, that whether the situation in South East Iraq in late April and early May 2003 is characterised as one of occupation or of active international armed conflict, the four Geneva Conventions were applicable. 109. The Court refers to the findings of fact which it made after analysis of all the available evidence (see paragraphs 47-57 above). In particular, it held that Tarek Hassan was found by British troops, armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value were retrieved (see paragraphs 51-54 above). The Court considers that, in these circumstances, the United Kingdom authorities had reason to believe that he might be either a person who could be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention (see Articles 4A and 21 of the Third Geneva Convention and Articles 42 and 78 of the Fourth Geneva Convention, all set out in paragraph 33 above). Almost immediately following his admission to Camp Bucca, Tarek Hassan was subject to a screening process in the form of two interviews by United States and United Kingdom military intelligence officers, which led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security (see paragraphs 21-24 above). The Court has also found that the evidence points to his having been physically released from the Camp shortly thereafter (see paragraphs 55-56 above). 110. Against this background, it would appear that Tarek Hassan’s capture and detention was consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions, and was not arbitrary. Moreover, in the light of his clearance for release and physical release within a few days of being brought to the Camp, it is unnecessary for the Court to examine whether the screening process constituted an adequate safeguard to protect against arbitrary detention. Finally, it would appear from the context and the questions that Tarek Hassan was asked during the two screening interviews that the reason for his detention would have been apparent to him. 111. It follows from the above analysis that the Court finds no violation of Article 5 §§ 1, 2, 3 or 4 in the circumstances of the present case. | The Court held that the applicant’s brother had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops, in April 2003, until his release from the bus that had taken him from Camp Bucca under military escort to a drop-off point, in May 2003. The Court was in particular not persuaded by the Government of the United Kingdom’s argument that jurisdiction should not apply in the active hostilities phase of an international armed conflict, where the agents of the Contracting State were operating in territory of which they were not the occupying power, and where the conduct of the State should instead be subject to the requirements of international humanitarian law. Nor did the Court accept the Government’s other argument for excluding jurisdiction in so far as the period after the applicant’s brother had entered Camp Bucca was concerned as it involved a transfer of custody from the United Kingdom to the United States. Lastly, it was clear that the applicant’s brother, when taken to the civilian holding area for release, had remained in the custody of armed military personnel and under the authority and control of the United Kingdom until the moment he had been let off the bus that took him from the Camp. |
1,050 | Work during detention | AS TO THE LAW I. ON THE QUESTIONS OF JURISDICTION AND ADMISSIBILITY RAISED IN THE PRESENT CASES 44. In its memorials of February and June 1970, the Government requested the Court, principally, "to declare that the applications introduced against Belgium by Jacques De Wilde on 17th June 1966, Franz Ooms on 20th May 1966 and Edgard Versyp on 16th August 1966, were not admissible as the applicants had failed to exhaust the domestic remedies and that therefore they should have been rejected by the European Commission of Human Rights under Article 26 and Article 27 (3) (art. 26, art. 27-3) of the Convention". The Commission, for its part, requested the Court in its memorial of April 1970: "(1) In the first place: - to hold inadmissible the Belgian Government ’ s request that it be declared that the Commission should have rejected the three applications under Articles 26 and 27, paragraph (3) (art. 26, art. 27-3), of the Convention, on the ground that the Court has no jurisdiction to pronounce on decisions by the Commission concerning the admissibility of applications; (2) alternatively: - to declare the said request inadmissible on the ground that the Belgian Government is debarred from making such a request to the Court since it did not raise the objection of non-exhaustion of domestic remedies before the Commission at the stage where the admissibility of the applications was under consideration; (3) in the further alternative: - to declare the said request ill-founded since, at the time when the three applications were submitted to the Commission, there was no effective remedy in Belgian law against decisions by magistrates in vagrancy cases". 45. At the oral hearings, the Agent of the Government submitted that it should please the Court: - "to find that it is fully competent to decide on the admissibility of the applications in the cases now before it and in particular to verify whether the applicants have or have not exhausted the domestic remedies"; - "to find that the applications ... are inadmissible since the applicants failed to observe the provisions of Article 26 (art. 26) of the Convention". The failure to observe Article 26 (art. 26) is alleged to have consisted not only in the non-exhaustion of domestic remedies but also, in the case of Edgard Versyp, in a failure to observe the six-month time-limit. The Delegates of the Commission maintained without change the submissions on this point contained in their memorial of April 1970. 46. The Court is thus asked to consider, before any examination of the merits: (1) whether it has jurisdiction to examine the contentions of the Government based on the alleged failure to comply with Article 26 (art. 26) of the Convention, either as regards the exhaustion of domestic remedies or as regards the six-month time-limit; (2) if so, whether the Government must be held to be precluded from raising the inadmissibility of the applications, either on the ground of non-exhaustion of domestic remedies or, alternatively, in the case of Versyp, on the ground of his being out of time; (3) if the Government is not held to be precluded, whether its contentions in regard to inadmissibility are well-founded. A. As to the jurisdiction of the court to examine the submissions of non-exhaustion of domestic remedies and of delay made by the government against the applications accepted by the commission 47. In order to judge whether it has jurisdiction to examine the submissions of the Government objecting to the examination of the present applications, the Court refers to the text of the Convention and especially to Article 45 (art. 45) which determines its jurisdiction ratione materiae. This Article (art. 45) specifies that "the jurisdiction of the Court shall extend to all cases (" toutes les affaires") concerning the interpretation and application of the ... Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48 (art. 48)". Under this provision, as the Court pointed out in its judgment of 9th February 1967 ("Linguistic" case, Series A, p. 18), "the basis of the jurisdiction ratione materiae of the Court is established once the case raises a question of the interpretation or application of the Convention". 48. The phrase "cases concerning the interpretation and application of the ... Convention", which is found in Article 45 (art. 45), is remarkable for its width. The very general meaning which has to be attributed to it is confirmed by the English text of paragraph (1) of Article 46 (art. 46-1) which is drafted in even wider terms ("all matters") than Article 45 (art. 45) ("all cases"). 49. True, it follows from Article 45 (art. 45) that the Court may exercise its jurisdiction only in regard to cases which have been duly brought before it and its supervision must necessarily be directed first to the observance of the conditions laid down in Articles 47 and 48 (art. 47, art. 48). Once a case is duly referred to it, however, the Court is endowed with full jurisdiction and may thus take cognisance of all questions of fact and of law which may arise in the course of the consideration of the case. 50. It is therefore impossible to see how questions concerning the interpretation and application of Article 26 (art. 26) raised before the Court during the hearing of a case should fall outside its jurisdiction. That possibility is all the less conceivable in that the rule on the exhaustion of domestic remedies delimits the area within which the Contracting States have agreed to answer for wrongs alleged against them before the organs of the Convention, and the Court has to ensure the observance of the provisions relating thereto just as of the individual rights and freedoms guaranteed by the Convention and its Protocols. The rule of exhaustion of domestic remedies, which dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, is also one of the generally recognised principles of international law to which Article 26 (art. 26) makes specific reference. As for the six months ’ rule, it results from a special provision in the Convention and constitutes an element of legal stability. 51. 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 (art. 27) assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decisions 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 mutatis mutandis, the Lawless judgment of 14th November 1960, Series A, p. 11). The decision to accept an application has the effect of leading the Commission to perform the functions laid down in Articles 28 to 31 (art. 28, art. 29, art. 30, art. 31) of the Convention and of opening up the possibility that the case may be brought before the Court; but it is not binding on the Court any more than the Court is bound by the opinion expressed by the Commission in its final report "as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention" (Article 31) (art. 31). 52. For the foregoing reasons, the Court considers it has jurisdiction to examine the questions of non-exhaustion and of delay raised in the present cases. B. As to estoppels (French" forclusion ") 53. The jurisdiction of the Court to rule on the submissions made by a respondent Government based on Article 26 (art. 26) as a bar to claims directed against it, does not in any way mean that the Court should disregard the attitude adopted by the Government in this connection in the course of the proceedings before the Commission. 54. It is in fact usual practice in international and national courts that objections to admissibility should as a general rule be raised in limine litis. This, if not always mandatory, is at least a requirement of the proper administration of justice and of legal stability. The Court itself has specified in Rule 46, paragraph 1, of its Rules, that "a preliminary objection must be filed by a Party at the latest before the expiry of the time-limit fixed for the delivery of the first pleading". Doubtless, proceedings before the Court are not the same as those which took place before the Commission and usually the parties are not even the same; but they concern the same case and it results clearly from the general economy of the Convention that objections to jurisdiction and admissibility must, in principle, be raised first before the Commission to the extent that their character and the circumstances permit (compare the Stögmüller judgment of 10th November 1969, Series A, pp. 41-42, paragraph 8, and the Matznetter judgment of the same date, Series A, p. 32, paragraph 6). 55. Furthermore, there is nothing to prevent States from waiving the benefit of the rule of exhaustion of domestic remedies, the essential aim of which is to protect their national legal order. There exists on this subject a long established international practice from which the Convention has definitely not departed as it refers, in Article 26 (art. 26), to "the generally recognised rules of international law". If there is such a waiver in the course of proceedings before the Commission (see, for example, Yearbook of the Convention, Vol. 7, pp. 258-260), it can scarcely be imagined that the Government concerned is entitled to withdraw the waiver at will after the case has been referred to the Court. 56. In examining the proceedings which took place before the Commission, the Court finds that the Government had, in its first observations on the admissibility of the applications, raised against one of the complaints of Franz Ooms grounds of inadmissibility based on non-exhaustion of domestic remedies. As the Commission considered that complaint to be manifestly ill-founded, it did not find it necessary to rule on this objection. The partial decision which it gave on this point in the Ooms case is dated 11th February 1967. At the oral hearings which followed that partial decision and the decisions of the same date in the two related cases, a member of the Commission put a question, on 6th April 1967, to the Agent of the Government about the possibility of challenging before the Conseil d ’ État magistrates ’ decisions in vagrancy matters (Sections 13 and 16 of the 1891 Act) and the Minister of Justice ’ s decisions refusing to release a detained vagrant (Sections 15 and 18 of the same Act). The Agent of the Government replied that that superior administrative court considered it had no jurisdiction to hear an appeal against a magistrate ’ s order (Vleminckx judgment of 21st December 1951, cf. paragraph 37 above); he underlined, however, that there was "at least one case" - Du Bois - "pending before the Conseil d ’ État in which the problem of the right to appeal against a magistrate ’ s decision had again been raised"; he further expressed his personal opinion that "a decision of the Minister refusing" to release a detained vagrant could doubtless be set aside if need be by the Conseil d ’ État "on a pure point of law". He did not, however, use this as an argument to request the Commission either to reject the applications for non-exhaustion of domestic remedies or to adjourn its decision on their admissibility. The Commission thus felt itself able to conclude that there were no domestic remedies and consequently to find in its decision of 7th April 1967, declaring the applications admissible, "that the applicants (had) observed the conditions laid down in Article 26 (art. 26) of the Convention". 57. Two months later, however, on 7th June 1967, the Conseil d ’ État delivered a judgment in which it reversed its former case-law; it declared admissible and allowed Mr. Du Bois ’ appeal for annulment of the magistrate ’ s order (see paragraph 37 above). The Government informed the Commission of this judgment in its memorial of 31st July 1967 and formally requested that the three applications be rejected as inadmissible for non-exhaustion of domestic remedies. Counsel for the applicants expressed the view that the respondent Government "could not at this stage dispute the admissibility of the applications as this had been finally determined by the Commission ’ s decision of 7th April 1967" (paragraph 59 of the report). On 8th February 1968, the Agent of the Belgian Government repeated the request at the hearing before the Commission (paragraphs 124 and 125 of the report): he invited the Commission to give "a second decision on admissibility to the effect that the wording of the Belgian Conseil d ’ État ’ s judgment clearly establishes that (the) applicants had available to them a remedy which they did not make use of, although they could have done so". Finally, the Commission refused this request in its report adopted on 19th July 1969 (paragraph 177). The Commission recalled that "in accordance with the principles of international law referred to by Article 26 (art. 26) of the Convention an applicant is not required to exhaust a domestic remedy if, in view of the consistent case-law of the national courts, this remedy has no reasonable chance of success"; it pointed out that this was the case prior to the Du Bois judgment of 7th June 1967 as regards recourse against magistrates ’ decisions in vagrancy matters and concluded that it had been right in declaring the three applications admissible and that the above-mentioned judgment did "not constitute a new factor justifying the reopening of the decision on the admissibility of the applications". In these circumstances, the Court cannot consider that the Government is precluded from raising before it the objection of non-exhaustion of domestic remedies as regards the orders of the magistrates at Charleroi, Namur and Brussels. 58. The same is not true of the Government ’ s alternative submission that the applicant Versyp was out of time. Versyp applied to the Commission on 16th August 1966 that is more than six months after the decision of the Brussels police court of 4th November 1965, ordering his detention for vagrancy (see paragraphs 29 and 31 above). The Government argues from this that, if the Court considered that the decision was not at the time subject to any form of appeal, Versyp ’ s application to the Commission should be held to be inadmissible for failure to observe the time-limit laid down by Article 26 (art. 26) in fine of the Convention. The Court observes that this submission was never made before the Commission nor even before the Court during the written procedure: the Agent of the Government presented it for the first time in his address of 16th November 1970, that is more than three years after the Commission ’ s decision on admissibility and more than one year after the case had been brought before the Court. In these circumstances, the Court finds that the Government is precluded from submitting that Versyp ’ s application was out of time. 59. The same finding holds good for the submission of non-exhaustion of remedies made by the Government before the Court as regards the decisions of the Minister of Justice rejecting the three applicants ’ petitions for release. The applicants argued that their being kept in detention by the Minister had violated Article 5 (1) (art. 5-1) of the Convention. The Government contends that it would have been open to them to contest the said decisions before the Conseil d ’ État alleging a violation of Article 5 (art. 5), which is directly applicable in Belgian law, and that they failed to take this course. But the Government never relied, before the Commission, on Article 26 (art. 26) of the Convention on this point (cf. paragraphs 56 and 57 above); for the reasons already mentioned, it cannot do so for the first time before the Court. C. As to the substance of the contention of the government regarding the exhaustion of domestic remedies 60. The Court recalls that under international law, to which Article 26 (art. 26) makes express reference, the rule of exhaustion of domestic remedies demands the use only of such remedies as are available to the persons concerned and are sufficient, that is to say capable of providing redress for their complaints (Stögmüller judgment of 10th November 1969, Series A, p. 42, paragraph 11). It is also recognised that it is for the Government which raises the contention to indicate the remedies which, in its view, were available to the persons concerned and which ought to have been used by them until they had been exhausted. The information provided by the Belgian Government in this connection partly concerns the orders for detention, partly relates to the subsequent detention of the applicants. As the Court has found that the Government is precluded from making submissions based on the latter information (see paragraph 59 above), only the former part is relevant in connection with Article 26 (art. 26) of the Convention. The Government ’ s line of argument on this point underwent a clear change in the course of the proceedings. 61. It was never contested that the decisions taken by the magistrates in regard to Jacques De Wilde, Franz Ooms and Edgard Versyp were of an administrative nature and so were not subject to appeal or to proceedings in cassation (see paragraph 37 above). The Agent of the Government acknowledged too, at the first hearings before the Commission and apparently basing himself on the Vleminckx judgment of 21st December 1951, that the Conseil d ’ État would not either have allowed an appeal against the said orders for detention. After the Du Bois judgment of 7th June 1967, the Government ’ s Agent acknowledged that the former case-law was "a little out of touch with the facts in the sense that there was in fact no further administrative decision after the magistrate ’ s decision" (paragraph 120 of the Commission ’ s report). Before the Court he expressed the same view, noting that the alleged ministerial decision referred to in the Vleminckx judgment was "simply an administrative measure of execution" of the magistrate ’ s order or in other words "a purely physical operation". This point of view appears to be correct: the examination of the files of the proceedings before the magistrates shows that what actually happened was that the competent officers of the public prosecutor ’ s department were instructed by the magistrates at Charleroi, Namur and Brussels to execute their orders and to this end they "required" the directors of the institutions at Wortel and Merksplas "to receive" De Wilde, Ooms and Versyp "into (the) institution" without there being any further "decision" in the matter (see paragraphs 17, 24 and 29 above). The Minister may doubtless intervene under the 1891 Act to stop the execution of the orders for detention. In practice, however, the Minister does not as a rule use this power and he did not do so in the present cases. Yet the Agent of the Government argued before the Commission and then before the Court that it followed from the same Du Bois judgment that the magistrates ’ orders for detention for vagrancy were in fact open to challenge before the Conseil d ’ État. He added that the Du Bois case was already pending before that superior administrative court at the time when the detention of the applicants was ordered, that there existed therefore at that time a possibility of a reversal of the rule stated in the Vleminckx case and that, for this reason, the applicants were not entitled to be excused from attempting to use such a remedy. 62. The Court is unable to accept this point of view. The Court finds - without it even being necessary to examine here whether recourse to the Conseil d ’ État would have been of such a nature as to satisfy the complaints - that according to the settled legal opinion which existed in Belgium up to 7th June 1967 recourse to the Conseil d ’ État against the orders of a magistrate was thought to be inadmissible. This was the submission of the Government itself before the Conseil d ’ État in the Du Bois case. One cannot reproach the applicants that their conduct in 1965 and 1966 conformed with the view which the Government ’ s Agent continued to express at the beginning of 1967 at the hearings on admissibility before the Commission and which was prevalent in Belgium at the time. Furthermore, once the Du Bois judgment of 7th June 1967 was known, the applicants were not in a position to benefit from the possible remedy it seemed to open up because, well before that judgment was pronounced, the time-limit of sixty days prescribed by Article 4 of the Regent ’ s Decree of 23rd August 1948 on the procedure before the administrative division of the Conseil d ’ État had expired. The Court is therefore of the opinion that, as regards the complaints concerning the detention orders, the Government ’ s submission of inadmissibility on the ground of failure to observe the rule on the exhaustion of domestic remedies is not well-founded. II. AS TO THE MERITS 63. In regard to the merits of the present cases the Government and the Commission in substance reiterated at the oral hearings the submissions contained in their respective memorials. The Government requested the Court: "to find that the decisions and measures which are the subject of the applications brought against Belgium by Jacques De Wilde on 17th June 1966, by Franz Ooms on 20th May 1966 and by Edgard Versyp on 16th August 1966 are not in conflict with Belgium ’ s obligations under the European Convention of Human Rights." For its part, the Commission asked the Court to "decide: (1) whether or not the jurisdiction exercised by the magistrate in deciding to place the applicants at the Government ’ s disposal on the ground of vagrancy is such as to fulfil the requirements of the Convention, particularly of Article 5, paragraph (4) (art. 5-4); (2) whether or not the Convention, particularly Article 5, paragraph (4) (art. 5-4), was violated by the fact that the applicants did not have at their disposal a remedy before a court which, at reasonable intervals, after the initial decision on detention, could have investigated whether their detention was still lawful and order their release if such was no longer the case; (3) whether or not the Convention, particularly Article 7 and Article 6, paragraph (1) and paragraph (3) (b) and (c) (art. 7, art. 6-1, art. 6-3-b, art. 6-3-c), was violated by the fact that the reformative measures taken vis-à-vis vagrants under Belgian law are in practice, as alleged, of a penal nature; (4) whether or not the Convention, particularly Article 4 (art. 4), was violated by the fact that the applicants were subjected to forced labour during a period of detention which allegedly did not meet the requirements of Article 5 (art. 5); (5) whether or not the Convention, particularly Article 8 (art. 8), was violated by the fact that the applicants ’ correspondence was censored during their detention." It appears from the cases before the Court that questions on the merits arise also in connection with Article 5, paragraphs (1) and (3), Article 3 and Article 13 (art. 5-1, art. 5-3, art. 3, art. 13). A. As to the "general and preliminary observation" of the government 64. In its memorials and oral pleadings, the Government recalled that the Court ’ s function is to rule on three specific cases where the legislation in issue was applied and not on an abstract problem relating to the compatibility of the legislation with the Convention; on this point the Government cited the De Becker judgment of 27th March 1962 (Series A, p. 26 in fine). Starting from that premise, the Government stressed that the applicants had reported voluntarily to the police and that their admission to Wortel and Merksplas had been the result "of an express or implicit request" on their part, express for Versyp and Ooms, implicit for De Wilde. According to the Government, such a "voluntary reporting" can scarcely amount to being "deprived of liberty" within the meaning of Article 5 (art. 5). From this it concluded that the Court ought to rule out forthwith any idea of a failure to comply with the requirements of the Convention, as regards both "the detention itself" and "the conditions of detention". 65. The Court is not persuaded by this line of argument. Temporary distress or misery may drive a person to give himself up to the police to be detained. This does not necessarily mean that the person so asking is in a state of vagrancy and even less that he is a professional beggar or that his state of vagrancy results from one of the circumstances - idleness, drunkenness or immorality - which, under Section 13 of the Belgian Act of 1891, may entail a more severe measure of detention. Insofar as the wishes of the applicants were taken into account, they cannot in any event remove or disguise the mandatory, as opposed to contractual, character of the decisions complained of; this mandatory character comes out unambiguously in the legal texts (Sections 8, 13, 15, 16 and 18 of the 1891 Act) and in the documents before the Court. Finally and above all, the right to liberty is too important in a "democratic society" within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 (art. 5) even although the person concerned might have agreed to it. When the matter is one which concerns ordre public within the Council of Europe, a scrupulous supervision by the organs of the Convention of all measures capable of violating the rights and freedoms which it guarantees is necessary in every case. Furthermore, Section 12 of the 1891 Act acknowledges the need for such supervision at national level: it obliges the magistrates to "ascertain the identity, age, physical and mental state and manner of life of persons brought before the police court for vagrancy". Nor does the fact that the applicants "reported voluntarily" in any way relieve the Court of its duty to see whether there has been a violation of the Convention. B. As to the alleged violation of paragraph (1) of article 5 (art. 5-1) 66. It appears from the record that the applicants alleged, inter alia, a violation of the first paragraph of Article 5 (art. 5-1) of the Convention; the Government contested this submission and the Commission itself rejected it in its report. Insofar as it applies to the present cases, Article 5 (1) (art. 5-1) provides as follows: "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention ... of vagrants; ...." 67. The applicants were provisionally deprived of their freedom by the police superintendent to whom they presented themselves and they were brought by him within twenty-four hours, as provided by Section 3 of the Act of 1st May 1849, before the magistrate who placed them at the disposal of the Government (see paragraphs 16, 17, 23, 24, 28 and 29 above). The lawfulness of the action of the police superintendents has not been challenged; as the persons concerned reported voluntarily and indicated that they were in a state of vagrancy it was only normal that they should be brought before the magistrate for a decision. This action, moreover, was of a purely preliminary nature. It was by virtue of the magistrates ’ orders that the detention took place. It is therefore by reference to these orders that the lawfulness of the detention of the three applicants must be assessed. 68. The Convention does not contain a definition of the term "vagrant". The definition of Article 347 of the Belgian Criminal Code reads: "vagrants are persons who have no fixed abode, no means of subsistence and no regular trade or profession". Where these three conditions are fulfilled, they may lead the competent authorities to order that the persons concerned be placed at the disposal of the Government as vagrants. The definition quoted does not appear to be in any way irreconcilable with the usual meaning of the term "vagrant", and the Court considers that a person who is a vagrant under the terms of Article 347 in principle falls within the exception provided for in Article 5 (1) (e) (art. 5-1-e) of the Convention. In the present cases the want of a fixed abode and of means of subsistence resulted not merely from the action of the persons concerned in reporting voluntarily to the police but from their own declarations made at the time: all three stated that they were without any employment (see paragraphs 16, 23 and 28 above). As to the habitual character of this lack of employment the magistrates at Charleroi, Namur and Brussels were in a position to deduce this from the information available to them concerning the respective applicants. This would, moreover, also be indicated by the fact that, although they purported to be workers, the three applicants were apparently not in a position to claim the minimum number of working days required to be effected within a given period which, in accordance with the Royal Decree of 20th December 1963 (Articles 118 et seqq.), would have qualified them for unemployment benefits. 69. Having thus the character of a "vagrant", the applicants could, under Article 5 (1) (e) (art. 5-1-e) of the Convention, be made the subject of a detention provided that it was ordered by the competent authorities and in accordance with the procedure prescribed by Belgian law. In this connection the Court observes that the applicants did not receive the same treatment: De Wilde was placed at the disposal of the Government on 19th April 1966 for two years but was released on 16th November 1966; Ooms was placed at the disposal of the Government on 21st December 1965 for an indefinite period and was released after one year, that is on the expiry of the statutory term; Versyp was placed at the disposal of the Government on 4th November 1965 for two years and was released on 10th August 1967, that is after one year, nine months and six days (see paragraphs 17, 20, 24, 26, 29 and 31 above). As the Court has already noted, the placing of a person at the disposal of the Government for a fixed period differs from that for an indefinite period not solely by the fact that it is pronounced for a minimum period of two years (Section 13 of the 1891 Act) while the other may not last longer than one year (Sections 16 and 18): the first is also more severe in that it is entered on the criminal record (see paragraph 36 above), and in regard to electoral disabilities (see paragraph 158 of the Commission ’ s report). In the present cases, the orders concerning De Wilde and Versyp do not disclose which of the four conditions mentioned in Section 13 may have led the magistrates to apply this section rather than Section 16, but they refer to the administrative file of the persons concerned. The file on Jacques De Wilde contained an information note dated 19th April 1966 - the day he appeared before the magistrate at Charleroi - which listed various convictions and orders placing him at the disposal of the Government (see paragraph 16 above). Furthermore, the Brussels police court had before it, when Versyp appeared there, a document from the Social Rehabilitation Office in which his state of vagrancy was attributed to idleness and to weakness for drink (see paragraph 28 above). 70. The Court has, therefore, not found either irregularity or arbitrariness in the placing of the three applicants at the disposal of the Government and it has no reason to find the resulting detention incompatible with Article 5 (1) (e) (art. 5-1-e) of the Convention. C. As to the alleged violation of paragraph (3) of article 5 (art. 5-3) 71. Before the Commission, the applicants also alleged that there had been a violation of paragraph (3) of Article 5 (art. 5-3) which provides that: "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) (art. 5-1-c) ... shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial ...". Paragraph (1) (c) of Article 5 (art. 5-1-c), to which the text quoted refers, is solely concerned with "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"; as simple vagrancy does not amount to an offence in Belgian law (see paragraph 34 above), the applicants were arrested and detained not under sub-paragraph (c) of the first paragraph of Article 5 (art. 5-1-c) - nor, it may be added, under sub-paragraph (a) (art. 5-1-a) ("after conviction by a competent court") - but in fact under sub-paragraph (e) (art. 5-1-e). From this the Court must conclude - as did the Commission - that paragraph (3) (art. 5-3) was not applicable to them. D. As to the alleged violation of paragraph (4) of article 5 (art. 5-4) 72. The Commission accepted to a certain extent the arguments of the applicants and expressed the opinion that the system in issue fails to comply with Article 5 (4) (art. 5-4) of the Convention. According to paragraph (4) of Article 5 (art. 5-4), which is applicable inter alia to vagrants detained under sub-paragraph (e) of paragraph (1) (art. 5-1-e), "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". 73. Although the Court has not found in the present cases any incompatibility with paragraph (1) of Article 5 (art. 5-1) (see paragraphs 67 to 70 above), this finding does not dispense it from now proceeding to examine whether there has been any violation of paragraph (4) (art. 5-4). The latter is, in effect, a separate provision, and its observance does not result eo ipso from the observance of the former: "everyone who is deprived of his liberty", lawfully or not, is entitled to a supervision of lawfulness by a court; a violation can therefore result either from a detention incompatible with paragraph (1) (art. 5-1) or from the absence of any proceedings satisfying paragraph (4) (art. 5-4), or even from both at the same time. 1. As to the decisions ordering detention 74. The Court began by investigating whether the conditions in which De Wilde, Ooms and Versyp appeared before the magistrates satisfied their right to take proceedings before a court to question the lawfulness of their detention. 75. The applicants were detained in execution of the magistrates ’ orders: their arrest by the police was merely a provisional act and no other authority intervened in the three cases (see paragraph 67 above). A first question consequently arises. Does Article 5 (4) (art. 5-4) require that two authorities should deal with the cases falling under it, that is, one which orders the detention and a second, having the attributes of a court, which examines the lawfulness of this measure on the application of the person concerned? Or, as against this, is it sufficient that the detention should be ordered by an authority which had the elements inherent in the concept of a "court" within the meaning of Article 5 (4) (art. 5-4)? 76. At first sight, the wording of Article 5 (4) (art. 5-4) might make one think that it guarantees the right of the detainee always to have supervised by a court the lawfulness of a previous decision which has deprived him of his liberty. The two official texts do not however use the same terms, since the English text speaks of "proceedings" and not of "appeal", "recourse" or "remedy" (compare Articles 13 and 26 (art. 13, art. 26)). Besides, it is clear that the purpose of Article 5 (4) (art. 5-4) is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected; the word "court" ("tribunal") is there found in the singular and not in the plural. Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Article 5 (4) (art. 5-4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 (4) (art. 5-4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after "conviction by a competent court" (Article 5 (1) (a) of the Convention) (art. 5-1-a). It may therefore be concluded that Article 5 (4) (art. 5-4) is observed if the arrest or detention of a vagrant, provided for in paragraph (1) (e) (art. 5-1-e), is ordered by a "court" within the meaning of paragraph (4) (art. 5-4). It results, however, from the purpose and object of Article 5 (art. 5), as well as from the very terms of paragraph (4) (art. 5-4) ("proceedings"," recours "), that in order to constitute such a "court" an authority must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty. If the procedure of the competent authority does not provide them, the State could not be dispensed from making available to the person concerned a second authority which does provide all the guarantees of judicial procedure. In sum, the Court considers that the intervention of one organ satisfies Article 5 (4) (art. 5-4), but on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. 77. The Court has therefore enquired whether in the present cases the magistrate possessed the character of a "court" within the meaning of Article 5 (4) (art. 5-4), and especially whether the applicants enjoyed, when appearing before him, the guarantees mentioned above. There is no doubt that from an organisational point of view the magistrate is a "court"; the Commission has, in fact, accepted this. The magistrate is independent both of the executive and of the parties to the case and he enjoys the benefit of the guarantees afforded to the judges by Articles 99 and 100 of the Constitution of Belgium. The task the magistrate has to discharge in the matters under consideration consists in finding whether in law the statutory conditions required for the "placing at the disposal of the Government" are fulfilled in respect of the person brought before him. By this very finding, the police court necessarily decides "the lawfulness" of the detention which the prosecuting authority requests it to sanction. The Commission has, however, emphasised that in vagrancy matters the magistrate exercises "an administrative function" and does not therefore carry out the "judicial supervision" required by Article 5 (4) (art. 5-4). This opinion is grounded on the case-law of the Court of Cassation and of the Conseil d ’ État (see paragraph 37 above). The Commission had concluded from this that the provision of a judicial proceeding was essential. 78. It is true that the Convention uses the word "court" (French "tribunal") in several of its Articles. It does so to mark out one of the constitutive elements of the guarantee afforded to the individual by the provision in question (see, in addition to Article 5 (4), Articles 2 (1), 5 (1) (a) and (b), and 6 (1) (tribunal) (art. 5-4, art. 2-1, art. 5-1-a, art. 5-1-b, art. 6-1). In all these different cases it denotes bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case (see Neumeister judgment of 27th June 1968, Series A, p. 44, paragraph 24), but also the guarantees of judicial procedure. The forms of the procedure required by the Convention need not, however, necessarily be identical in each of the cases where the intervention of a court is required. In order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place. Thus, in the Neumeister case, the Court considered that the competent courts remained "courts" in spite of the lack of "equality of arms" between the prosecution and an individual who requested provisional release (ibidem); nevertheless, the same might not be true in a different context and, for example, in another situation which is also governed by Article 5 (4) (art. 5-4). 79. It is therefore the duty of the Court to determine whether the proceedings before the police courts of Charleroi, Namur and Brussels satisfied the requirements of Article 5 (4) (art. 5-4) which follow from the interpretation adopted above. The deprivation of liberty complained of by De Wilde, Ooms and Versyp resembles that imposed by a criminal court. Therefore, the procedure applicable should not have provided guarantees markedly inferior to those existing in criminal matters in the member States of the Council of Europe. According to Belgian law, every individual found in a state of vagrancy is arrested and then brought - within twenty-four hours as a rule - before the police court (Section 8 of the 1891 Act and Section 3 of the Act of 1st May 1849). Regarding the interrogation of this individual, the 1891 Act limits itself to specifying in Section 12 that the magistrate ascertains the identity, age, physical and mental state and manner of life of the person brought before him. Regarding the right of defence, the only relevant provision is found in Section 3 of the Act of 1st May 1849, which provides that the person concerned is granted a three-day adjournment if he so requests. According to information provided by the Government, the Code of Criminal Procedure does not apply to the detention of vagrants. The procedure in question is affected by the administrative nature of the decision to be given. It does not ensure guarantees comparable to those which exist as regards detention in criminal cases, notwithstanding the fact that the detention of vagrants is very similar in many respects. It is hard to understand why persons arrested for simple vagrancy have to be content with such a summary procedure: individuals liable to sentences shorter than the terms provided for by Section 13, and even Section 16, of the 1891 Act - including those prosecuted for an offence under Articles 342 to 344 of the Criminal Code (aggravated vagrancy) - have the benefit of the extensive guarantees provided under the Code of Criminal Procedure. This procedure undoubtedly presents certain judicial features, such as the hearing taking place and the decision being given in public, but they are not sufficient to give the magistrate the character of a "court" within the meaning of Article 5 (4) (art. 5-4) when due account is taken of the seriousness of what is at stake, namely a long deprivation of liberty attended by various shameful consequences. Therefore it does not by itself satisfy the requirements of Article 5 (4) (art. 5-4) and the Commission was quite correct in considering that a remedy should have been open to the applicants. The Court, however, has already held that De Wilde, Ooms and Versyp had no access either to a superior court or, at least in practice, to the Conseil d ’ État (see paragraphs 37 and 62 above). 80. The Court therefore reaches the conclusion that on the point now under consideration there has been a violation of Article 5 (4) (art. 5-4) in that the three applicants did not enjoy the guarantees contained in that paragraph. 2. As to the rejection of the requests for release addressed by the applicants to the administrative authorities 81. In the applicants ’ view there was a violation of Article 5 (4) (art. 5-4) not only because of the conditions in which their detention was ordered by the magistrate, but also because of the refusal of their requests for release. 82. The Court finds that the applicants could without doubt have appealed to the Conseil d ’ État and that this appeal would have been effective if the Minister of Justice had violated the 1891 Act in refusing their requests for release. None of them, however, claims to have been in one of those situations where the Act requires that detention should end. De Wilde and Versyp were in fact released 0before the expiry of the period of two years fixed by the magistrate (Section 13 of the 1891 Act; paragraphs 17, 20, 29, 31 in fine and 40 above); Ooms was released on the expiry of the statutory period of one year and his release savings had not before that time reached the prescribed amount (Sections 16, 17 and 18, first paragraph, of the 1891 Act; paragraphs 24, 26 in fine and 40 above). The applicants could also have contended before the Conseil d ’ État - as they did before the Commission, though not very precisely (see paragraph 48 of the report) - that their detention had in any event violated Article 5 (1) (art. 5-1) of the Convention, particularly because, due to supervening circumstances, they had lost their character of vagrants. In fact Article 5 (art. 5) of the Convention is directly applicable in the Belgian legal system, such that its violation could have been complained of before the Conseil d ’ État and it cannot be affirmed a priori that it would not have decided speedily. 83. On the other hand, the requests looked to the Minister of Justice to use the discretionary power conferred upon him by the 1891 Act (Sections 15 and 18) to decide, in the light of the circumstances relied on by the interested party or of other pertinent information, whether a detained vagrant should be released before the statutory period or the term fixed by the magistrate ’ s decision. To that extent, whatever action was taken thereafter falls completely outside the application of the provision of Article 5 (4) (art. 5-4) of the Convention. This latter provision, in fact, requires supervision only of the lawfulness of the placing in detention or of its continuation. 84. The Court does not therefore find any violation of Article 5 (4) (art. 5-4) on the point at issue. E. As to the alleged violation of articles 6 and 7 (art. 6, art. 7) 85. The Commission and the Government both submit that Articles 6 and 7 (art. 6, art. 7), relied upon by the applicants, are inapplicable. 86. The Court has come to the conclusion that, during the hearing before the magistrates, the applicants were not dealt with in accordance with the requirements of Article 5 (4) (art. 5-4) (see paragraphs 74 to 80 above). This conclusion makes it superfluous to examine whether Article 6 (art. 6) was applicable in this case, and if so, whether it was observed. 87. As to Article 7 (art. 7), it is clear that it is not relevant. Simple vagrancy is not an "offence" under Belgian law and the magistrate did not find the applicants "guilty" nor impose a "penalty" on them (see, mutatis mutandis, the Lawless judgment of 1st July 1961, Series A, p. 54, paragraph 19). F. As to the alleged violation of article 4 (art. 4) 88. According to Article 4 (art. 4) of the Convention, "(1) ... (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 (art. 5) (...); ..." In the Commission ’ s view the work which the applicants were compelled to perform was not justified under Article 4 (art. 4) as, in its opinion, there had been a breach of paragraph (4) of Article 5 (art. 5-4). 89. The Court too has, in these cases, found a violation of the rights guaranteed by Article 5 (4) (art. 5-4) (see paragraphs 74 to 80 above), but it does not think that it must deduce therefrom a violation of Article 4 (art. 4). It in fact considers that paragraph (3) (a) of Article 4 (art. 4-3-a) authorises work ordinarily required of individuals deprived of their liberty under Article 5 (1) (e) (art. 5-1-e). The Court has found moreover, on the basis of information before it, that no violation of Article 5 (1) (e) (art. 5-1-e) has been established in respect of De Wilde, Ooms and Versyp (see paragraphs 67 to 70 above). 90. Furthermore, the duty to work imposed on the three applicants has not exceeded the "ordinary" limits, within the meaning of Article 4 (3) (a) (art. 4-3-a) of the Convention, because it aimed at their rehabilitation and was based on a general standard, Section 6 of the 1891 Act, which finds its equivalent in several member States of the Council of Europe (see paragraph 38 above and Appendices IV and V to the Commission ’ s report). The Belgian authorities did not therefore fail to comply with the requirements of Article 4 (art. 4). G. As to the alleged violation of article 8 (art. 8) 91. During their detention, the applicants ’ correspondence was supervised to a certain extent. In the Commission ’ s view this led to a violation of Article 8 (art. 8), on the one hand because the detention of the applicants was unlawful in that Article 5 (4) (art. 5-4) had not been complied with and on the other hand because, even if it was lawful, ordinary detention for vagrancy cannot entail the restrictions on the freedom of correspondence which are permissible in criminal matters. 92. On the first argument, the Court recalls mutatis mutandis the reasons given in paragraph 89 above on compulsory labour. 93. On the second argument, the Court recalls that Article 8 (art. 8) of the Convention provides that: "(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The Court finds that the supervision in question, which constitutes unquestionably an "interference by a public authority with the exercise of (the) right" enshrined in paragraph (1) of Article 8 (art. 8-1), was "in accordance with the law" - within the meaning of paragraph (2) (art. 8-2) - as it is provided for in Articles 20 to 23 of the Royal Decree of 21st May 1965 taken in conjunction with Article 95. It then observes, in the light of the information given to it, that the competent Belgian authorities did not transgress in the present cases the limits of the power of appreciation which Article 8 (2) (art. 8-2) of the Convention leaves to the Contracting States: even in cases of persons detained for vagrancy, those authorities had sufficient reason to believe that it was "necessary" to impose restrictions for the purpose of the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others. These restrictions did not in any event apply in a long series of instances enumerated in Article 24 of the Royal Decree of 21st May 1965 nor in connection with the applicants ’ correspondence with the Commission (see paragraph 39 above). Finally, there is nothing to indicate that there was any discrimination or abuse of power to the prejudice of the applicants (Articles 14 and 18 of the Convention) (art. 14, art. 18). H. As to the alleged violation of article 3 (art. 3) 94. De Wilde and Versyp complained of disciplinary punishments inflicted on them for refusing to work but the Commission did not consider that these punishments violated Article 3 (art. 3). Having regard to the facts before it, the Court also does not find, even ex officio, any suggestion of a violation of this text. I. As to the alleged violation of article 13 (art. 13) 95. The applicants invoked Article 13 (art. 13) of the Convention, alleging that they did not have "an effective remedy before a national authority" in order to obtain the protection of the rights guaranteed by Articles 5, 3, 4, 6, 7 and 8 (art. 5, art. 3, art. 4, art. 6, art. 7, art. 8). The Court has already ruled that the applicants were not dealt with in a manner compatible with the requirements of Article 5 (4) (art. 5-4) (see paragraphs 74 to 80 above); to this extent, it does not think it has to enquire whether there has been a violation of Article 13 (art. 13). As to the applicants ’ other complaints, the Court limits itself to finding that Articles 3 to 8 (art. 3, art. 4, art. 5, art. 6, art. 7, art. 8) of the Convention are directly applicable in Belgian law. If, therefore, the applicants considered that the administrative decisions put in issue had violated the rights guaranteed by these articles, they could have challenged them before the Conseil d ’ État. | The Court found that there had been no violation of Article 4 (prohibition of slavery or forced labour) of the Convention, as the applicants’ work in the vagrancy centres had not exceeded the permitted limits in the Convention, because it had been aimed at the rehabilitation of vagrants and was comparable to that in several other Council of Europe member States. |
958 | Risk of being stoned to death | THE LAW 17. The Court reiterates that the applicant complained that his expulsion to Iran would expose him to a risk of treatment in violation of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention. Noting that the Aliens Appeals Board, on 23 September 2004, revoked the expulsion order against the applicant and granted him a permanent residence permit, the Court finds that the applicant no longer faces expulsion to Iran or any risk of treatment in violation of the mentioned provisions. 18. In these circumstances, the Court concludes that the matter has been resolved within the meaning of Article 37 § 1 (b ) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of the application by virtue of that Article. 19. Accordingly, the case should be struck out of the list. | The Court observed that in September 2004 the Swedish Aliens Board had revoked the expulsion order against the applicant and granted him a permanent residence permit. Finding that the applicant no longer faced expulsion to Iran or any risk of a violation of the articles of the Convention invoked, the Court concluded that the matter had been resolved and accordingly struck out the case pursuant to Article 37 of the Convention. |
29 | Affiliation- and inheritance-related rights | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Inter vivos division of property and action for abatement 24. Under French law, estate-owners can divide their estate themselves between their heirs. An inter vivos division ( donation-partage ) is a deed by which the donor divides his or her property immediately among his or her heirs ( inter vivos transfer). It is an anticipated, definitive and negotiated division. Title to the property is transferred at the time of the donation, which is also the first (anticipated) step in a succession that will be opened later. According to the case-law of the Court of Cassation, an inter vivos division becomes a division for the purposes of inheritance on the donor’s death. The succession is both opened and definitively liquidated or divided on the date of the ascendant’s death (Court of Cassation, 7 March 1876; First Civil Division, 5 October 1994, Bull. 1994, I, no. 27). 25. A descendant who has not received a share of the estate may claim his or her reserved portion from the assets existing when the succession is opened. If there are insufficient assets in the estate, he can bring an action for abatement within five years of the donor’s death. This was the remedy used by the applicant in accordance with Articles 1077-1 and 1077-2 of the Civil Code, which read as follows at the material time:- Article 1077-1 “A descendant who has not participated in the inter vivos division of the estate, or has received a lower share than his or her reserved portion, may bring an action for abatement if, when the succession is opened, there are insufficient assets not included in the division of the estate to constitute or complete his or her reserved portion, regard being had to any voluntary dispositions from which he may have benefited.” Article 1077-2 “ Inter vivos divisions are subject to the rules governing inter vivos gifts as regards determination of the amount, calculation of the reserved portion and reductions. An action for abatement cannot be brought until after the death of the ascendant who has made the division or the surviving ascendant in the event of a division by the mother and father of their estate among all their issue. Such an action shall become time-barred five years after the death. A child not yet conceived at the time of the inter vivos division may bring a similar action for the purpose of constituting or supplementing his or her reserved portion.” 26. Articles 913 and 915 of the Civil Code on “the disposable portion of assets” in inter vivos gifts and wills, which have since been repealed, provided as follows: Article 913 “Voluntary dispositions, whether granted inter vivos or by will, shall not exceed half of the donor’s assets where he leaves only one child on his death; one third where he leaves two children; and one quarter where he leaves three or more children; no distinction shall be made between legitimate children and children born outside marriage, save in the case provided for in Article 915.” Article 915 “A child born outside marriage whose father or mother was, at the time of his conception, bound by marriage to another person is entitled to inherit under his parent’s estate in competition with the legitimate children born of the marriage; account shall be taken of his presence when calculating the disposable portion; however, he shall receive only half the share to which he would have been entitled if all the children, including himself, had been legitimate. The children born of the marriage injured by the adultery shall inherit in equal shares the portion by which the adulterine child’s share of the estate is thus reduced.” B. Development of the law relating to children “born of adultery” 27. The inheritance laws relating to children born outside marriage were amended by the Filiation Law of 1972, which conferred equal status on them for inheritance purposes save for the case of children “born of adultery” (see Mazurek, cited above, § 17), whose rights were limited to “half the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate” (see former Articles 757 and 760 of the Civil Code, ibid; see also, regarding gifts, paragraph 26 above ). 28. The 2001 Law, which was enacted following the Court’s judgment in the case of Mazurek, eliminated the restrictions on inheritance rights of children “born of adultery” and conferred equal status for inheritance purposes on all children, be they legitimate, born to unmarried parents or “born of adultery”. Section 1 provides that “no distinction shall be made between birth within or birth outside marriage when determining which relatives are entitled to inherit” (Article 733 of the Civil Code) and that “children or their issue shall inherit from their father and mother or other ascendants, irrespective of sex or primogeniture, and even if they are born of different unions” (Article 735 of the Civil Code). The provisions governing the restriction on the reserved portion of children “born of adultery” and their ability to receive gifts have been repealed. Lastly, order no. 2005-759 of 4 July 2005 reforming the filiation rules establishes the principle of equal status regardless of birth, thus eliminating the very concepts of legitimate children and children born outside marriage. C. Transitional provisions 1. Transitional provisions of the 1972 Law 29. These provisions limited the scope of the reform introduced by the 1972 Law. Section 14 had excluded any immediate application of the new inheritance rights of children born to unmarried parents or “of adultery”, in successions opened before it came into force, and had precluded such children from challenging inter vivos gifts granted before the Law came into force on 1 August 1972. It was on the basis of that provision that the Montpellier Court of Appeal dismissed the applicant’s action (see paragraph 20 above). 2. Section 25 of the 2001 Law 30. Under section 25(1) of the 2001 Law, entry into force of that Law was in principle deferred until 1 July 2002. However, regarding the repeal of the provisions of the Civil Code concerning the rights of children “born of adultery”, the legislature decided, exceptionally, that the Law would come into force immediately on the date of publication of the Law in the Official Gazette, that is, on 4 December 2001. Accordingly, section 25(2) provides: “The present Law shall apply to successions that are already open from [1 July 2002], subject to the following exceptions: ... (2) Subject to any prior agreement between the parties or final court decision, the following shall apply to successions already open on the date of publication of the present Law in the Official Gazette of the French Republic and not having given rise to division prior to that date: (a) the provisions relating to the new inheritance rights of children born outside marriage whose father or mother was, at the time of conception, bound by marriage to another person; ...” 31. In so far as it concerns the rights of children “born of adultery”, the 2001 Law is therefore applicable to all successions open on 4 December 2001, on condition that there has been no division prior to that date. 3. Law of 23 June 2006 reforming successions and voluntary dispositions 32. This Law amended section 25(2) of the 2001 Law by repealing the terms “whose father or mother was, at the time of their conception, bound by marriage to another person”. Section 25(2)(2) no longer mentions whether a child was born of adultery or not. 4. Relevant case-law of the Court of Cassation 33. In a judgment of 6 January 2004 (Court of Cassation, First Civil Division, Bull. 2004, I, no. 10) the Court of Cassation applied the transitional provisions of the 2001 Law, without referring to the provisions of the Convention, in quashing an appeal judgment of 2002 which had set aside gifts granted to a child “born of adultery” under the old provisions whereas there had not yet been division of the estate. In a judgment of 7 June 2006 ( Court of Cassation, First Civil Division, Bull. 2006, I, no. 297), also applying the transitional provisions, the Court of Cassation dismissed an appeal by a child “born of adultery” who had received half the share that he would have received if he had been a legitimate child as division had been made before 4 December 2001 (on 13 March 1996 in that case). In a judgment of 15 May 2008, the Court of Cassation held that the provisions of the 2001 Law relating to the new rights of children “born of adultery” were applicable to a succession opened before 1 August 1972 (in 1962 in that case) where this had not given rise to a division prior to 4 December 2001 (Court of Cassation, First Civil Division, Bull. 2008, I, no. 139). III. ELEMENTS OF COMPARATIVE LAW 34. In the great majority of the countries studied (forty States out of forty-two) a child’s status for inheritance purposes is independent of the marital status of their parents. Twenty-one countries confer equal status on all children, while nineteen others (Albania, Azerbaijan, Bosnia-Herzegovina, Cyprus, Spain, Greece, Italy, Latvia, Luxembourg, Republic of Moldova, Monaco, Montenegro, San Marino, Serbia, Slovakia, Slovenia, the United Kingdom, Turkey and Ukraine) make a distinction between legitimate children and children born to unmarried parents/of adultery, but expressly grant them equal status for inheritance purposes. The concept of a child “born of adultery” is not at all common, such children generally being put in the same category as children born outside marriage. Some differences between legitimate children and children born outside marriage/ “of adultery” still exist, for inheritance purposes, in Malta. The only State Party that still makes a clear distinction, for inheritance purposes, regarding children born outside marriage is Andorra, where the latter are treated less favourably than legitimate children. IV. RELEVANT DOCUMENTS AND EUROPEAN CASE-LAW 35. The Committee of Ministers Rapporteur Group (GR-J) is still examining the draft recommendation [CM/Rec (2012)] to member states on the rights and legal status of children and parental responsibilities (with the explanatory memorandum) which has been presented to the Committee of Ministers. The draft recommendation seeks to replace the obsolete standards of the European Convention of 1975 on the Legal Status of Children Born out of Wedlock (Convention which France has not ratified), which are no longer in conformity with the Court’s case-law. The text, as currently drafted, contains a central element which is the principle of non-discrimination laid down in Principle 1, which provides: “Children should not be discriminated against on grounds such as ... birth ... In particular, children should not be discriminated against on the basis of the civil status of their parents.” Principle 5 – “Rights of succession” – provides that subject to the definition of parents given in Principle 2 and Principle 17(2) (posthumous conception), “children should regardless of the circumstances of their birth have equal rights of succession to the estate of each of their parents and of those parents’ family.” The relevant paragraph of the explanatory memorandum is worded as follows: “22. Having regard to the general principle of non-discrimination as set out in Principle 1 and to the Court’s rulings in Mazurek v. France, Camp and Bourimi v. the Netherlands and Marckx v. Belgium, that ruled respectively that discrimination against children of adulterous relationships and children born out of wedlock with regard to inheritance rights violated Article 14 of the ECHR, taken in conjunction with Article 1 of the first Protocol in the former case, and Article 8 in the latter case, Principle 5 states in broad terms that children should have equal rights of succession regardless of the circumstances of their birth. In this respect, it has a wider application than Article 9 of the 1975 European Convention on the Legal Status of Children born out of Wedlock which gives such children the same rights of succession as children born in wedlock. Principle 5 is subject to the definition of parents given in Principle 2.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 36. The applicant complained that, as a child “born of adultery”, he was unable to assert his inheritance rights and that such unjustified discrimination persisted after the Court’s judgment in Mazurek and despite the enactment of the 2001 Law. He alleged that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, which read respectively as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... birth ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The Chamber judgment 37. In its judgment of 21 July 2011 the Chamber held that the applicant’s complaint fell within the scope of Article 1 of Protocol No. 1, which sufficed to render Article 14 of the Convention applicable. As his maternal filiation had been recognised in 1983, the applicant had an interest, enforceable in the domestic courts, in asserting his right to receive a share of his mother’s estate in a manner compatible with Article 14 of the Convention (see paragraphs 38-42 of the Chamber judgment). 38. The Chamber observed, on the merits, that the 1972 and 2001 Laws had put in place specific transitional provisions in respect of the new inheritance rights enshrined in those Laws. It noted that the domestic courts had considered that the applicant could not benefit from those provisions at the time of lodging his action for abatement of the inter vivos gift of 1970. According to the Court of Appeal, the transitional provision of the 1972 Law precluded any challenge to inter vivos gifts granted before the Law came into force. The Court of Cassation had held that as division of the estate had taken place on the mother’s death in 1994, this precluded – under section 25(2) of the 2001 Law – application of the new provisions providing for equal inheritance rights. Those interpretations of domestic law pursued the legitimate aim of safeguarding the principle of legal certainty and the long-standing rights of the legitimate children. Moreover, they did not appear unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination. The Chamber distinguished the specific situation in the present case from the cases in which there had not yet been division of the estate ( Mazurek, cited above, and Merger and Cros v. France, no. 68864/01, 22 December 2004) in concluding that the difference in treatment in question was proportionate to the aim pursued and that there had been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraphs 50-59 of the Chamber judgment). B. The parties’ submissions 1. The Government (a) Applicability of Article 14 of the Convention 39. The Government submitted that the facts complained of by the applicant did not fall within the scope of Article 1 of Protocol No. 1, which rendered Article 14 of the Convention inapplicable. They observed in that connection that the inter vivos division of 1970 had vested title to the property in the two legitimate children and established an acquired legal situation which precluded the applicant from obtaining a share in his mother’s estate. Neither the 1972 Law nor the 2001 Law had had the effect of enabling him to acquire the share in the estate to which he would have been entitled if the deed of 1970 had not existed. Unlike the cases of Mazurek and Merger and Cros, in which the applicants had automatically acquired inheritance rights following the death of their parent, the succession in the present case had been settled in 1970 before the death of the applicant’s mother. Moreover, division of the property had taken effect several years before the applicant’s filiation had been established in 1983. Consequently, according to the Government, the applicant had no inheritance rights in respect of the estate (they referred, mutatis mutandis, to Alboize-Barthes and Alboize-Montezume v. France (dec.), no. 44421/04, 21 October 2008). (b) Merits 40. As they had previously submitted before the Chamber, the Government maintained that the applicant had not been “excluded” from his mother’s succession but, in so far as the assets had already been disposed of under the terms of the deed of inter vivos division of 1970, he could not acquire the share to which he would have been entitled under the 1972 and 2001 Laws if that deed had not existed. Accordingly, it was not the judicial decisions in question which had prevented the applicant from inheriting under his mother’s estate, but a prior deed of transfer of property which had established an acquired legal situation. 41. It was to those rights acquired by the other heirs that the legislature in 2001 – having, moreover, fully satisfied the general obligations incumbent on it to execute the Mazurek judgment – had had to have regard when bringing the Law into force. Application of the new Law to pre-existing situations necessarily had to abide by the principles of legal certainty and foreseeability of the law established by the case-law of the Court. Section 25 of the 2001 Law thus excluded application of the new rights to successions already open on the date of its publication that had given rise to division before that date. In the Government’s view, the Court of Cassation’s interpretation did not therefore conflict with the Mazurek judgment. Unlike that judgment and the case of Merger and Cros, in which the applicants had challenged situations that were not yet established when they lodged their action in the domestic courts, the action for abatement brought by the applicant in 1998 had sought to challenge a situation in which there had already been division of the estate. 42. The Government acknowledged that a judgment finding a violation of the Convention could give rise to general measures in the respondent State and have an impact going beyond the dispute concerning the parties before the Court. Nevertheless, they stated that the Court had never recognised a retroactive effect of its judgments. To claim that the Mazurek judgment should apply to the present case, that is, to a legal situation that had been definitively established before it was delivered, and that it should have retroactive effect, would render Article 46 of the Convention nugatory. 2. The applicant (a) Applicability of Article 14 of the Convention 43. The applicant did not file additional observations with the Grand Chamber to those produced before the Chamber in which he had expressed his disagreement with the Government on this point (paragraph 37 of the Chamber judgment). He submitted that the establishment of his maternal filiation in 1983 had vested inheritance rights in him at the opening of his mother’s succession – pending on the day he lodged his application – which fell within the scope of Article 1 of Protocol No. 1. (b) Merits 44. According to the applicant, the effectiveness of Article 14 of the Convention had to be guaranteed and only “very weighty” reasons could lead to a difference in treatment on the ground of birth being regarded as compatible with the Convention. Legal certainty was neither a right guaranteed by the Convention nor a public-interest ground capable of justifying an infringement of the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1. 45. What might have been tolerable in 1972, on grounds of the concept of legal certainty, in frustrating the principle of non-discrimination guaranteed by Article 14 could no longer be so after Mazurek. However, the applicant stressed that rights unfairly acquired should not be made secure by the transitional provisions of the 2001 Law, which was meant to put an end to violations of the type found in that judgment. In his submission, in redressing the damage caused to Mr Mazurek the Court had refused to secure pre-existing legal situations obtaining prior to its judgment. The applicant considered that the Court should take note here of the failure to observe the binding force of Mazurek and find against France accordingly. To conclude otherwise would be tantamount to accepting that a State enacting legislation designed to draw the consequences of the Court’s case ‑ law had an indefinite period of time in which to transpose its decisions, and could be concerned, in the particular circumstance, only with future successions, and thus validate ex post facto recognised violations of the Convention. The applicant complained of continuing discrimination which perpetuated the effects of the 1972 Law that had been the subject of a finding against France by the Court and disavowed by the legislature in 2001. 46. He further submitted that the action for abatement that he had brought in 1998 had been pending when the 2001 Law was published, which should have resulted in his benefiting from the new rights granted to children “born of adultery”. Consequently, as his action had been pending, his mother’s estate could not have been definitively divided; to conclude otherwise would amount to making actions for abatement of inter vivos divisions an ineffective remedy. C. The Court’s assessment 1. Applicability of Article 14 of the Convention (a) General principles 47. According to the established case-law of the Court, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports of Judgments and Decisions 1997 ‑ I; Petrovic v. Austria, 27 March 1998, § 22, Reports 1998 ‑ II; Zarb Adami v. Malta, no. 17209/02, § 42, ECHR 2006 ‑ VIII; and Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)). (b) Whether the facts of the case fall within the ambit of Article 1 of Protocol No. 1 48. In the present case it therefore needs to be determined whether the applicant’s complaint, regarding his inability to assert his inheritance rights by means of an action for abatement of the inter vivos division signed by his mother without regard for his reserved portion, falls within the ambit, that is, the scope of Article 1 of Protocol No. 1. 49. The Court reiterates that the concept of “possessions” referred to 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: 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 Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000 ‑ I). 50. Article 1 of Protocol No. 1 does not guarantee the right to acquire possessions (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002 ‑ II (extracts), and Ališić and Others v. Bosnia ‑ Herzegovina Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia (dec.), no. 60642/08, § 52, 17 October 2011), in particular on intestacy or through voluntary dispositions (see, mutatis mutandis, Marckx, cited above, § 50, and Merger and Cros, cited above, § 37). However, “possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among other authorities, Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332; Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 ‑ IX; and Association nationale des pupilles de la Nation v. France (dec.), no. 22718/08, 6 October 2009). A legitimate expectation must have a “sufficient basis in national law” (see Kopecký, cited above, § 52; Depalle v. France [GC], no. 34044/02, § 63, ECHR 2010; and Saghinadze and Others v. Georgia, no. 18768/05, § 103, 27 May 2010). Likewise, the concept of “possessions” may extend to a particular benefit of which the persons concerned have been deprived on the basis of a discriminatory condition of entitlement (see Andrejeva v. Latvia [GC], no. 55707/00, § 79, ECHR 2009). However, the hope of recognition of the survival of an old property right which it has long been impossible to exercise effectively cannot be considered as a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see the recapitulation of the relevant principles in Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, with further references to the Commission’s case-law; see also Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 85, ECHR 2001 ‑ VIII; Nerva and Others v. the United Kingdom, no. 42295/98, § 43, ECHR 2002 ‑ VIII; and Stretch v. the United Kingdom, no. 44277/98, § 32, 24 June 2003). 51. The issue that needs to be examined in each case 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 Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfı v. Turkey, nos. 37639/03, 37655/03, 26736/04 and 42670/04, § 41, 3 March 2009; Depalle, cited above, § 62; Plalam S.P.A. v. Italy (merits), no. 16021/02, § 37, 18 May 2010; and Di Marco v. Italy (merits), no. 32521/05, § 50, 26 April 2011). The Court considers that that approach requires it to take account of the following points of law and of fact. 52. In the present case the Court observes that it is purely on account of his status as a child “born of adultery” that the applicant was refused the right to request an abatement of the inter vivos division signed by his mother, that status being the basis of the Court of Cassation’s decision – interpreting the transitional provisions of the 2001 Law – to exclude application in his case of the provisions relating to the new inheritance rights recognised by that Law. In cases, such as the present, concerning a complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular asset on a discriminatory ground covered by Article 14, the relevant test is whether, but for the discriminatory ground about which the applicant complains, he or she would have had a right, enforceable under domestic law, in respect of the asset in question (see, mutatis mutandis, Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005 ‑ X, and Andrejeva, cited above, § 79). That test is satisfied in the present case. 53. The Government argued that the applicant could not claim any inheritance rights in respect of the inter vivos gift of 1970 because this had had the effect of immediately and irrevocably distributing his mother’s assets, and had done so before his maternal filiation had been judicially established (see paragraph 39 above). The Court cannot accept that argument, however. It notes that whilst inter vivos gifts have the immediate effect of transferring ownership, according to the case-law of the Court of Cassation this does not become a division for inheritance purposes until the death of the donor. The succession is both opened and definitively liquidated or divided on the date of the ascendant’s death (see paragraph 24 above), which in this case was not until 1994. By that date the applicant’s filiation had been established. It was thus indeed on grounds of his status as a child “born of adultery” that the applicant was excluded from his mother’s estate. 54. In that connection the present case resembles those of Mazurek and Merger and Cros, cited above, and can be distinguished from the case of Alboize-Barthes and Alboize-Montezume v. France (dec.), cited above, in which it was decided that the liquidation of the applicants’ father’s estate – in 1955, and thus well before their filiation had been established – precluded them from asserting inheritance rights to their late father’s estate and claiming title to a “possession”. 55. It follows that the applicant’s pecuniary interests fall within the scope of Article 1 of Protocol No. 1 and the right to the peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 of the Convention applicable. 2. The merits (a) General principles 56. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations. For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see Mazurek, cited above, §§ 46 and 48). Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Stec and Others, cited above, §§ 51 and 52, ECHR 2006 ‑ VI). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background, but the Court must determine in the last resort whether the Convention requirements have been complied with. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Konstantin Markin, cited above, § 126). 57. According to the Court’s established case-law since Marckx, cited above, the distinction established for inheritance purposes between children “born outside marriage” and “legitimate” children has raised an issue under Article 8 of the Convention taken alone (see Johnston and Others v. Ireland, 18 December 1986, Series A no. 112) and under Article 14 of the Convention taken in conjunction with Article 8 (see Vermeire v. Belgium, 29 November 1991, Series A no. 214 ‑ C, and Brauer v. Germany, no. 3545/04, 28 May 2009) and Article 1 of Protocol No. 1 (see Inze v. Austria, 28 October 1987, Series A no. 126; Mazurek, cited above; and Merger and Cros, cited above). The Court has extended this case-law to voluntary dispositions by confirming the prohibition on discrimination where testamentary dispositions are concerned (see Pla and Puncernau v. Andorra, no. 69498/01, ECHR 2004 ‑ VIII). Accordingly, as early as 1979, in Marckx, the Court held that restrictions on children’s inheritance rights on grounds of birth were incompatible with the Convention. It has constantly reiterated this fundamental principle, establishing the prohibition of discrimination on grounds of a child’s birth “outside marriage” as a standard of protection of European public order. 58. The Court also observes that common ground between the member States of the Council of Europe regarding the importance of equal treatment of children born within and children born outside marriage has been established for a long time, which has, moreover, led to a uniform approach today by the national legislatures on the subject – the principle of equality eliminating the very concepts of legitimate children and children born outside marriage – and to social and legal developments definitively endorsing the objective of achieving equality between children (see paragraphs 28, 34 and 35 above). 59. Accordingly, very weighty reasons have to be advanced before a distinction on grounds of birth outside marriage can be regarded as compatible with the Convention (see Inze, cited above, § 41; Camp and Bourimi v. the Netherlands, no. 28369/95, § 38, ECHR 2000 ‑ X; and Brauer, cited above, § 40). 60. The Court is not in principle required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention (see Larkos v. Cyprus [GC], no. 29515/95, §§ 30-31, ECHR 1999 ‑ I; Pla and Puncernau, cited above, § 59; and Karaman v. Turkey, no. 6489/03, § 30, 15 January 2008). (b) Application in the present case (i) Whether there was a difference in treatment on grounds of birth outside marriage 61. It is not in dispute in the present case that the applicant was deprived of a reserved portion and definitively placed in a different situation from that of the legitimate children regarding inheritance of their mother’s estate. He was precluded from obtaining an abatement of the inter vivos division from which he had been excluded and a reserved portion on grounds of his status as a child “born of adultery”. 62. That difference in treatment between the applicant and his half-brother and half-sister derives from section 25(2) of the 2001 Law, which restricts application of the new inheritance rights of children “born of adultery” to successions opened prior to 4 December 2001 that have not given rise to division before that date (see paragraph 30 above). In interpreting the transitional provision concerned, the Court of Cassation considered that division for inheritance purposes had taken place in 1994, at the time of the applicant’s mother’s death (see paragraph 23 above), in line with long-standing case-law authority to the effect that in respect of inter vivos divisions the death of the donor triggers both the opening of the succession and the division (see paragraph 24 above). A legitimate child who had been omitted from the inter vivos division or not yet conceived when the deed was signed would not have been precluded from obtaining his or her reserved portion or share of the estate in accordance with Articles 1077-1 and 1077-2 of the Civil Code (see paragraph 25 above). It is therefore not disputed that the only reason for the difference in treatment suffered by the applicant was the fact that he had been born outside marriage. 63. The Court reiterates that its role is not to rule on which interpretation of the domestic legislation is the most correct, but to determine whether the manner in which that legislation has been applied has infringed the rights secured to the applicant under Article 14 of the Convention (see, among many other authorities and mutatis mutandis, Padovani v. Italy, 26 February 1993, § 24, Series A no. 257 ‑ B, and Pla and Puncernau, cited above, § 46). In the instant case its task is thus to establish whether there was objective and reasonable justification for the difference in treatment in question, which had its basis in a provision of domestic law. (ii) Justification for the difference in treatment (α) Pursuit of a legitimate aim 64. The Government did not advance any further justification for discriminating between legitimate children and children “born of adultery”. The Court notes that the French State agreed to amend its legislation following the Court’s judgment in the case of Mazurek, cited above, and reformed the rules of inheritance law by repealing all the discriminatory provisions relating to children “born of adultery” less than two years after the judgment had been delivered. Moreover, it welcomes this measure bringing French law into line with the Convention principle of non-discrimination. 65. However, according to the Government, it was not possible to undermine rights acquired by third parties – in the instant case by the other heirs – and that justified restricting the retroactive effect of the 2001 Law to those successions that were already open on the date of its publication and had not given rise to division by that date. The transitional provisions had accordingly been enacted in order to safeguard peaceful family relations by securing the rights acquired by beneficiaries where the estate had already been divided. 66. The Court is not convinced that denying the inheritance rights of one or more of its members can contribute to strengthening peaceful relations within a family. However, it accepts that the protection of acquired rights can serve the interests of legal certainty, an underlying value of the Convention (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999 ‑ VII; Beian v. Romania (no. 1), no. 30658/05, § 39, ECHR 2007 ‑ V (extracts); Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 56-57, 20 October 2011; and Albu and Others v. Romania, nos. 34796/09 and 63 other cases, § 34, 10 May 2012). Accordingly, with regard to a succession accepted by a child “born of adultery” when it was opened, in 1993, and liquidated in 1996, it has held that the Court of Cassation’s ruling of inadmissibility on the ground that there had already been division, which precluded the applicant from benefiting from the new rights, under the transitional provisions of the 2001 Law, was in accordance with the principle of legal certainty as reiterated in Marckx. Indeed “a judicial body cannot be required to set aside a freely accepted division in the light of a judgment of the Court delivered after the said division” (see E.S. v. France (dec.), no. 49714/06, 10 February 2009). The Court concludes that the concern to ensure the stability of completed inheritance arrangements, which was an overriding requirement in the opinion of the legislature and the court dealing with the case, constitutes a legitimate aim capable of justifying the difference in treatment in the present case. However, the difference in treatment must have been proportionate to that aim. (β) Proportionality between the means employed and the aim pursued 67. The Court observes that in the present case, subject to the statutory right to bring an action for abatement, the applicant’s half-brother and half ‑ sister obtained property rights on the basis of the inter vivos division of 1970 by virtue of which Mrs M.’s estate passed to them on her death in July 1994. On that basis this case is distinguishable from those of Mazurek and Merger and Cros, cited above, in which the estate had not yet passed to the beneficiaries. 68. However, the Court reiterates that “protecting the ‘legitimate expectation’ of the deceased and their families must be subordinate to the imperative of equal treatment between children born outside and children born within marriage” (see Brauer, cited above, § 43). In that connection it considers that the applicant’s half-brother and half-sister knew – or should have known – that their rights were liable to be challenged. At the time of their mother’s death in 1994 there was a statutory five-year time-period for bringing an action for abatement of an inter vivos division. The legitimate heirs should therefore have known that their half-brother had until 1999 to claim his share in the estate and that such an action was capable of calling into question not the division as such, but the extent of the rights of each of the descendants. Moreover, the action for abatement that the applicant did finally bring in 1998 was pending before the national courts at the time of delivery of the judgment in Mazurek, which declared that inequality of inheritance rights on grounds of birth was incompatible with the Convention, and at the time of publication of the 2001 Law, which executed that judgment by incorporating the principles established therein into French law. Lastly, the applicant was not a descendant whose existence was unknown to them, as he had been recognised as their mother’s “illegitimate” son in a judgment delivered in 1983 (see paragraph 12 above; see, mutatis mutandis, Camp and Bourimi, cited above, § 39). That was sufficient to arouse justified doubts as to whether the estate had actually passed on Mrs M.’s death in 1994 (see the conclusions of the advocate-general, paragraph 22 above). 69. The Court observes on that point that, according to the Government, the specific nature of inter vivos divisions precluded any calling into question of an existing legal situation – in this case the division effected in 1970 and subsequently definitively implemented on the estate-owner’s death – notwithstanding the legal proceedings under way (see paragraphs 40 and 41 above). The applicant challenged that submission (see paragraph 46 above). In the particular circumstances of the case, in which European case-law and the national legislative reforms showed a clear tendency towards eliminating all discrimination regarding the inheritance rights of children born outside marriage, the Court considers that the action brought by the applicant before the domestic courts in 1998 and dismissed in 2007 is a weighty factor when examining the proportionality of the difference in treatment (see paragraphs 22 and 68 above, and paragraph 72 below). The fact that that action was still pending in 2001 could not but relativise the expectation of Mrs M.’s other heirs that they would succeed in establishing undisputed rights to her estate. 70. Accordingly, in the light of the foregoing, the Court considers that the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister was not sufficiently weighty to override the claim by the applicant to a share in his mother’s estate. 71. Moreover, it would appear that, even in the eyes of the national authorities, the expectations of heirs who are the beneficiaries of an inter vivos division are not to be protected in all circumstances. Indeed, if the same action for an abatement of the inter vivos division had been brought at the same time by another legitimate child, born at a later date or wilfully excluded from the division, it would not have been declared inadmissible. 72. In that connection the Court questions the decision of the national court, in 2007 – years after the Marckx and Mazurek judgments cited above – to apply the principle of protection of legal certainty differently according to whether it was asserted against a legitimate child or a child “born of adultery”. It also notes that the Court of Cassation did not address the applicant’s principal ground of appeal relating to an infringement of the principle of non-discrimination as guaranteed by Article 14 of the Convention. The Court has previously held that where an applicant’s pleas relate to the “rights and freedoms” guaranteed by the Convention the courts are required to examine them with particular rigour and care and that this is a corollary of the principle of subsidiarity (see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 96, 28 June 2007, and Magnin v. France (dec.), no. 26219/08, 10 May 2012). (γ) Conclusion 73. In the light of all the aforementioned considerations, the Court concludes that there was no reasonable relationship of proportionality between the means employed and the legitimate aim pursued. There was therefore no objective and reasonable justification for the difference in treatment regarding the applicant. Accordingly, there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. 74. This conclusion does not call into question the right of States to enact transitional provisions where they adopt a legislative reform with a view to complying with their obligations under Article 46 § 1 of the Convention (see, for example, Antoni v. the Czech Republic, no. 18010/06, 25 November 2010; Compagnie des gaz de pétrole Primagaz v. France, no. 29613/08, § 18, 21 December 2010; Mork v. Germany, nos. 31047/04 and 43386/08, §§ 28 to 30 and 54, 9 June 2011; and Taron v. Germany, (dec.), no. 53126/07, 29 May 2012). 75. However, whilst the essentially declaratory nature of the Court’s judgments leaves it up to the State to choose the means by which to erase the consequences of the violation (see Marckx, cited above, § 58, and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 61, ECHR 2009), it should at the same time be pointed out that the adoption of general measures requires the State concerned to prevent, with diligence, further violations similar to those found in the Court’s judgments (see, for example, Salah v. the Netherlands, no. 8196/02, § 77, ECHR 2006 ‑ IX (extracts). This imposes an obligation on the domestic courts to ensure, in conformity with their constitutional order and having regard to the principle of legal certainty, the full effect of the Convention standards, as interpreted by the Court. This was not done in the present case, however. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 76. The applicant complained, on the same grounds as those relied on above in connection with the right to peaceful enjoyment of possessions, of unjustified discrimination infringing his right to respect for his private and family life guaranteed by Article 8 of the Convention, 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.” A. Chamber judgment 77. As in the Mazurek judgment, the Chamber did not consider it necessary to examine this question separately, as no distinct arguments had been submitted (see paragraph 60 of the Chamber judgment). B. The parties’ submissions 78. The applicant made no observation under Article 8 of the Convention. 79. The Government submitted, as their main argument, that there had been no interference in the present case. Questions concerning inheritance on intestacy could fall within the scope of Article 8 but that provision did not guarantee a right to inherit. A decision not to call into question a legal situation acquired in 1970 was not an interference with the applicant’s right to respect for his family life. 80. If, however, the Court were to consider that there had been interference, this had been prescribed by law, namely, the 1972 Law prohibiting heirs to a reserved portion of the estate from exercising those rights to the detriment of gifts granted prior to 1972. It had pursued a legitimate aim, namely, guaranteeing peaceful family relations by securing long-standing rights. Relying on the Court’s judgment in Marckx, the Government submitted that it would be contrary to the principle of legal certainty to set aside a division implemented several years (1972 Law) or even several decades (2001 Law) before the legislative and jurisprudential changes amending the inheritance rules applicable to children “born of adultery”. Lastly, that interference had been proportionate because the implementation of the impugned provisions by the domestic courts was limited both in time and in respect of the voluntary dispositions concerned. The Government concluded that the transitional provisions, as interpreted by the domestic courts, were in conformity with the decision in Mazurek and with the Convention. The 2001 Law, in particular, provided for application of the new provisions with regard to the time factor, taking account of acquired situations that it would be undesirable from a social point of view – and unfeasible in certain cases – to call into question. The Government stressed the margin of appreciation available to the State when balancing the competing interests. C. The Court’s assessment 81. Having regard to the Court’s conclusions regarding Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraph 73 above), the Court considers that it is not necessary to examine separately whether there has been a violation of that provision read in conjunction with Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82. 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.” 83. The applicant claimed EUR 128,550.75, which is the share of the estate that would have been paid to him if he had been treated as having equal rights to his half-brother and half-sister, plus interest. The applicant also claimed compensation for non-pecuniary damage which he assessed at EUR 30,000. Lastly, the applicant assessed at EUR 20,946 the costs and expenses incurred before the domestic courts and before the Court. 84. The Government submitted that the finding of a violation would be adequate compensation for the pecuniary loss suffered by the applicant. Any monetary compensation awarded for non-pecuniary damage could only be symbolic. With regard to costs and expenses, the Government considered that the award of an aggregate sum of EUR 10,000 would be appropriate. 85. In the circumstances of the present case the Court finds that the question of the application of Article 41 of the Convention is not ready for decision. Consequently, it will reserve the question in its entirety and fix the subsequent procedure, bearing in mind the possibility of an agreement being reached between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). The Court gives the parties three months for that purpose. | The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention. It found in particular that the legitimate aim of protecting the inheritance rights of the applicant’s half-brother and half-sister did not outweigh the applicant’s claim to a share of his mother’s estate and that the difference of treatment in his regard was discriminatory, as it had no objective and reasonable justification6. |
88 | Taking of children into care | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Appeals to the Supreme Court 16. A decision of the High Court which determines an appeal from the Circuit Court cannot be appealed to the Supreme Court ( Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises [1978] Irish Reports 295). The High Court can, however, ask for the opinion of the Supreme Court on points of law by way of a case stated. B. Adoption 17. The adoption of children in Ireland is governed by the Adoption Act 1952. This Act was amended in 1964, 1974 and 1976. Section 8 of the 1952 Act established a body to be known as the Adoption Board (An Bord Uchtála ) to fulfil the functions assigned to it by the Act, its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child. 18. Arrangements for the adoption of a child under the age of seven years may only be made by a registered adoption society or a Health Board (section 34 of the 1952 Act) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must, before accepting the child, furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the Act relating to consent to the making of an adoption order (section 39 of the 1952 Act). When the applicant ’ s child was placed for adoption there was also a requirement that notice in writing had to be given to the Adoption Board before or within seven days after the reception of the child into the home of the proposed adopters (section 10 of the Adoption Act 1964). 1. Consent 19. As regards the requisite consent of the natural parent, section 14 of the 1952 Act provides as follows: "(1) An adoption order shall not be made without the consent of every person being the child ’ s mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with this section. (2) The Board may dispense with the consent of any person if the Board is satisfied that that person is incapable by reason of mental infirmity of giving consent or cannot be found. ... (6) A consent may be withdrawn at any time before the making of an adoption order." 2. Entitlement to be heard by the Adoption Board 20. As regards those persons who are entitled to be heard on an application for an adoption order, section 16 of the 1952 Act provides as follows: "(1) The following persons and no other persons shall be entitled to be heard on an application for an adoption order - (a) the applicants, (b) the mother of the child, (c) the guardian of the child, (d) a person having charge of or control over the child, (e) a relative of the child, (f) a representative of a registered adoption society which is or has been at any time concerned with the child, (g) a priest or minister of a religion recognised by the Constitution (or, in the case of any such religion which has no ministry, an authorised representative of the religion) where the child or a parent (whether alive or dead) is claimed to be or to have been of that religion, (h) an officer of the Board, ( i ) any other person whom the Board, in its discretion, decides to hear. (2) A person who is entitled to be heard may be represented by counsel or solicitor. (3) The Board may hear the application wholly or partly in private. (4) Where the Board has notice of proceedings pending in any court of justice in regard to the custody of a child in respect of whom an application is before the Board, the Board shall make no order in the matter until the proceedings have been disposed of." 21. The Supreme Court has held in the leading case of the State ( Nicolaou ) v. An Bord Uchtála (the Adoption Board) [1966] Irish Reports 567 that the relevant provisions of the Adoption Act 1952, which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by the Adoption Board prior to the making of an adoption order, were not repugnant to the Constitution on the grounds that they discriminated against the natural father or infringed his constitutional rights (Article 40, sections 1 and 3 of the Constitution). It also held that the protection afforded to the "family" in Article 41 of the Constitution related only to the "family" based on marriage. 3. Application to the High Court 22. Section 20 of the 1952 Act provides: "20. (1) The Board may (and, if so requested by an applicant for an adoption order, the mother or guardian of the child or any person having charge of or control over the child, shall, unless it considers the request frivolous) refer any question of law arising on an application for an adoption order to the High Court for determination. (2) Subject to rules of court, a case stated under this section may be heard in camera." C. Custody and guardianship 1. Welfare of the child 23. As regards proceedings relating, inter alia, to the custody or guardianship or upbringing of an infant, the Guardianship of Infants Act 1964 provided as follows: "3. Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration." "Welfare" in relation to an infant is defined as follows in section 2 of the said Act: " ‘ Welfare ’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant." 2. Rights of married parents 24. Section 6 of the 1964 Act provided as follows: "(1) The father and mother of an infant shall be guardians of the infant jointly. (2) On the death of the father of an infant the mother, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father or by the court. (3) On the death of the mother of an infant the father, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother or by the court." 3. Rights of the natural father 25. The definition of "father" under section 2 of the 1964 Act did not include the father of a child born out of wedlock. 26. The Status of Children Act 1987 amended the Guardianship of Infants Act 1964 in the following way: "11. Section 6 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4): ‘ (4) Where the mother of an infant has not married the infant ’ s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian has otherwise been appointed in accordance with this Act. ’ 12. The Act of 1964 is hereby amended by the insertion after section 6 of the following section: ‘ 6A (1) Where the father and mother of an infant have not married each other, the court may on the application of the father, by order appoint him to be a guardian of the infant. (2) ... the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as guardian of the infant under section 8 (1) of this Act unless the court otherwise orders ... ’" 27. As regards court applications for custody of an infant, the 1964 Act provided as follows: "11. (1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper. (2) The court may by an order under this section (a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother; ..." 28. This section of the 1964 Act was amended by the 1987 Act as follows: "13. Section 11 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4): ‘ (4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him. ’" 4. Powers of guardians 29. The 1964 Act provides, inter alia, that a guardian under the Act shall be entitled (1) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and (2) to the possession and control of all property of the infant (section 10). D. Recent developments in Irish adoption practice 30. The following developments have taken place subsequent to the facts of the present case. By memorandum of 30 April 1990 from the Registrar of the Adoption Board, the relevant adoption societies and social workers have been notified, inter alia, of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child. The memorandum also draws attention to the desirability of ascertaining from the mother and, where practicable, the father, his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is. Where an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period. The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings. By a letter of 6 April 1992 the Adoption Board has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures. The letter indicates that whenever a natural father is (a) named as father on the child ’ s birth certificate, (b) in a continuous relationship with the mother, he should be notified, if not already aware, of the application to adopt his child and offered a hearing by the Board on the application. In addition two forms must now be completed by the adoption agency or by the applicant or applicants. These forms make the fullest relevant enquiries for the purpose, inter alia, of ascertaining the identity and intentions of the natural father as regards the proposed adoption. PROCEEDINGS BEFORE THE COMMISSION 31. Mr Keegan applied to the Commission on 1 May 1990. He complained that there had been a violation of his right to respect for family life (Article 8 of the Convention) (art. 8) in that his child had been placed for adoption without his knowledge or consent and that national law did not afford him even a defeasible right to be appointed guardian. He further complained of a denial of his right of access to court (Article 6 para. 1) (art. 6-1) in that he had no locus standi in the proceedings before the Adoption Board. He also alleged that, as the natural father, he had been discriminated against in the exercise of the above-mentioned rights (Article 14 taken in conjunction with Article 6 and/or Article 8) (art. 14+6, art. 14+8) when his position was compared to that of a married father. 32. The application (no. 16969/90) was declared admissible on 13 February 1992. In its report of 17 February 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 8 and of Article 6 para. 1 (art. 8, art. 6-1) (unanimously) and that it was not necessary to examine whether there had been a violation of Article 14 taken in conjunction with Article 6 and/or Article 8 (art. 14+6, art. 14+8) (by eleven votes to one). The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*]. AS TO THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. Whether the applicant can complain on his daughter ’ s behalf 33. The Government submitted that the applicant has no locus standi in relation to complaints by his daughter since only a person who exercises parental rights or is a guardian is entitled to bring a complaint under the Convention on behalf of a child. 34. In the course of the hearing before the Court the applicant indicated that it would no longer be appropriate for him to pursue any claim in respect of alleged infringements of his daughter ’ s rights in the light of an adoption order now having been made in respect of her (see paragraph 15 above). 35. In view of this position, the Court considers that it is only called upon to examine allegations concerning violations of the applicant ’ s rights. It is thus unnecessary to examine the Government ’ s objection on this point. B. Whether the applicant failed to exhaust domestic remedies 36. The Government contended that the application should be rejected for non-exhaustion of domestic remedies, contrary to Article 26 (art. 26) of the Convention, on the grounds: (1) that the applicant had not appealed to the Supreme Court against the final determination of the guardianship and custody proceedings by the High Court; (2) that he had failed to complain before the Irish courts of the fact that the law did not enable him to become involved in the adoption process and, in particular, to be consulted by the Adoption Board prior to any adoption; (3) that he had not challenged the constitutionality of the legal provisions relating to a natural father by bringing proceedings in the High Court alleging that the State had failed to afford him equal treatment compared to a married father and had failed to vindicate his personal rights. 37. Both the applicant and the Commission contended that there was no substance in any of these grounds. 38. The Court notes that the Government had raised points (2) and (3) in the proceedings before the Commission but not point (1). Accordingly they are estopped from raising this objection before the Court. Apart from this, under Irish law no appeal lies from the decision of the High Court on an appeal from the Circuit Court (see paragraph 16 above). 39. As regards points (2) and (3) the Court recalls that the only remedies required to be exhausted are remedies which are effective and capable of redressing the alleged violation (see, amongst many authorities, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, p.23, para. 48). It considers that the applicant would have had no prospect of success in making these claims before the courts having regard to the case-law of the Supreme Court which denies to a natural father any constitutional right to take part in the adoption process (see paragraph 21 above). 40. It follows that the Government ’ s objections based on non- exhaustion of domestic remedies fail. II. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) 41. The applicant alleged a violation of his right to respect for family life contrary to Article 8 (art. 8) of the Convention which provides: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." A. Applicability of Article 8 (art. 8) 42. The Government maintained that the sporadic and unstable relationship between the applicant and the mother had come to an end before the birth of the child and did not have the minimal levels of seriousness, depth and commitment to cross the threshold into family life within the meaning of Article 8 (art. 8). Moreover, there was no period during the life of the child in which a recognised family life involving her had been in existence. In their view neither a mere blood link nor a sincere and heartfelt desire for family life were enough to create it. 43. For both the applicant and the Commission, on the other hand, his links with the child were sufficient to establish family life. They stressed that his daughter was the fruit of a planned decision taken in the context of a loving relationship. 44. The Court recalls that the notion of the "family" in this provision is not confined solely to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together outside of marriage (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, para. 55). A child born out of such a relationship is ipso iure part of that "family" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their relationship has then ended (see, mutatis mutandis, the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, para. 21). 45. In the present case, the relationship between the applicant and the child ’ s mother lasted for two years during one of which they co-habited. Moreover, the conception of their child was the result of a deliberate decision and they had also planned to get married (see paragraph 6 above). Their relationship at this time had thus the hallmark of family life for the purposes of Article 8 (art. 8). The fact that it subsequently broke down does not alter this conclusion any more than it would for a couple who were lawfully married and in a similar situation. It follows that from the moment of the child ’ s birth there existed between the applicant and his daughter a bond amounting to family life. B. Compliance with Article 8 (art. 8) 1. Paragraph 1 of Article 8 (art. 8-1) 46. The applicant maintained that the State failed to respect his family life by facilitating the secret placement of his daughter for adoption without his knowledge or consent and by failing to create a legal nexus between himself and his daughter from the moment of birth. Moreover, the test applied by the Supreme Court to determine the question of custody placed him at a considerable disadvantage vis-à-vis the adoptive parents by requiring him to show that any advantages that they had to offer the child were not important for her welfare. In his submission, to be consistent with Article 8 (art. 8) the law ought to have conferred on him a defeasible right to guardianship and, in any competition for custody with strangers, there ought to have existed a rebuttable legal presumption that the child ’ s welfare was best served by being in his care and custody. He stressed, however, that he was not seeking to overturn the adoption order that had been made in respect of his child. 47. For the Government, Contracting States enjoy a wide margin of appreciation in the area of adoption. The right to respect for family life cannot be interpreted so broadly as to embrace a right to impose the wishes of the natural father over the interests of the child in disregard of the findings of fact made by the courts. The applicant, as the Supreme Court had held, had a right to apply to be made a guardian, which right he had exercised. Furthermore, the Supreme Court took into account the blood link between him and his daughter as one of the factors to be weighed in the balance in assessing the child ’ s welfare. In addition, the applicant had every opportunity to present his case and to have his interests considered by the courts. However, in this process the rights and interests of the mother, who had wanted her child to be adopted, had also to be taken into account. In particular, the Government emphasised that to grant a natural father a defeasible right to guardianship could give rise to complications, anguish and hardship in other cases and concerned a matter of social policy on which the European Court should be reluctant to intervene. 48. In the Commission ’ s view the obstacles under Irish law to the applicant establishing a relationship with his daughter constituted a lack of respect for his family life in breach of a positive obligation imposed by Article 8 (art. 8). 49. The Court recalls that the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective "respect" for family life. 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, none the less, 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, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 18, para. 41, and the above-mentioned Johnston and Others judgment, p. 25, para. 55 ). 50. According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be created that render possible as from the moment of birth the child ’ s integration in his family (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31, and the above-mentioned Johnston and Others judgment, p. 29, para. 72). In this context reference may be made to the principle laid down in Article 7 of the United Nations Convention on the Rights of the Child of 20 November 1989 that a child has, as far as possible, the right to be cared for by his or her parents. It is, moreover, appropriate to recall that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see, inter alia, the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, para. 58). 51. In the present case the obligations inherent in Article 8 (art. 8) are closely intertwined, bearing in mind the State ’ s involvement in the adoption process. The fact that Irish law permitted the secret placement of the child for adoption without the applicant ’ s knowledge or consent, leading to the bonding of the child with the proposed adopters and to the subsequent making of an adoption order, amounted to an interference with his right to respect for family life. Such interference is permissible only if the conditions set out in paragraph 2 of Article 8 (art. 8-2) are satisfied. 52. In view of this finding, it is not necessary to examine whether Article 8 (art. 8) imposed a positive obligation on Ireland to confer an automatic but defeasible right to guardianship on natural fathers such as the applicant. 2. Paragraph 2 of Article 8 (art. 8-2) (a) "In accordance with the law" and legitimate aim 53. It is clear that the decision to place the child for adoption without the father ’ s knowledge or consent was in accordance with Irish law as were the decisions taken by the courts concerning the welfare of the child. That they pursued the legitimate aim of protecting the rights and freedoms of the child is evident from the judgments of the High Court and the Supreme Court in this case (see paragraphs 10-14 above). (b) Necessity in a democratic society 54. For the Government, the interference was proportionate to the protection of the child ’ s health as well as of her rights and freedoms. The interpretation of Irish law by the Supreme Court took proper account of the paramount interests of the child. It remained open to the natural father to apply to the courts to be appointed, where appropriate, the guardian and/or custodian of the child. They contended that it was fair and wholly consistent with the Convention that special regulations be enforced to protect the interests of a child born out of wedlock. Indeed it would be impractical and potentially harmful to the interests of such a child to grant the natural father rights that extended beyond a right to apply for guardianship. In any event the Adoption Board may, in its discretion, decide to hear the natural father. 55. The Court notes that the applicant was afforded an opportunity under Irish law to claim the guardianship and custody of his daughter and that his interests were fairly weighed in the balance by the High Court in its evaluation of her welfare. However, the essential problem in the present case is not with this assessment but rather with the fact that Irish law permitted the applicant ’ s child to have been placed for adoption shortly after her birth without his knowledge or consent. As has been observed in a similar context, where a child is placed with alternative carers he or she may in the course of time establish with them new bonds which it might not be in his or her interests to disturb or interrupt by reversing a previous decision as to care (see, inter alia, the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 28, para. 62). Such a state of affairs not only jeopardised the proper development of the applicant ’ s ties with the child but also set in motion a process which was likely to prove to be irreversible, thereby putting the applicant at a significant disadvantage in his contest with the prospective adopters for the custody of the child. The Government have advanced no reasons relevant to the welfare of the applicant ’ s daughter to justify such a departure from the principles that govern respect for family ties. That being so, the Court cannot consider that the interference which it has found with the applicant ’ s right to respect for family life, encompassing the full scope of the State ’ s obligations, was necessary in a democratic society. There has thus been a violation of Article 8 (art. 8). III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 56. The applicant complained that he had no access to a court under Irish law to challenge the placement of his child for adoption and no standing in the adoption procedure. He invoked Article 6 para. 1 (art. 6-1) of the Convention according to which: "1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..." The Commission upheld his complaint. A. Applicability 57. The Court considers that Article 6 para. 1 (art. 6-1) is applicable to the present dispute (see, inter alia, the above-mentioned W. v. the United Kingdom judgment, pp. 32-35, paras. 72-79). Indeed this has not been seriously contested by the Government in the proceedings before the Court. B. Compliance 58. The Government submitted in the first place that the Adoption Board was not a court and thus the fact that the applicant had no statutory right to be heard by that body could not infringe this provision. Secondly, it was open to the applicant to apply to the courts for guardianship and custody of his daughter, which he did. Since these proceedings controlled and determined the activities of the Adoption Board which can make no order where it has notice of such an action, Article 6 para. 1 (art. 6-1) was complied with (see paragraph 20 above). 59. In the Court ’ s view the adoption process must be distinguished from the guardianship and custody proceedings. As has been previously observed, the central problem in the present case relates to the placement of the child for adoption without the prior knowledge and consent of the applicant (see paragraph 51 above). The applicant had no rights under Irish law to challenge this decision either before the Adoption Board or before the courts or, indeed, any standing in the adoption procedure generally (see paragraphs 20-22 above). His only recourse to impede the adoption of his daughter was to bring guardianship and custody proceedings (see paragraphs 8-14 above). By the time these proceedings had terminated the scales concerning the child ’ s welfare had tilted inevitably in favour of the prospective adopters. Against this background, it is not necessary to decide whether the Adoption Board, which admittedly exercises certain quasi-judicial functions, is a tribunal within the meaning of Article 6 para. 1 (art. 6-1). 60. There has thus been a breach of this provision. IV. ALLEGED VIOLATION OF ARTICLE 14 (art. 14) 61. The applicant further complained that he had been discriminated against contrary to Article 14 of the Convention in conjunction with Article 8 (art. 14+8) in the enjoyment of his right to respect for family life and in conjunction with Article 6 para. 1 (art. 14+6-1) as regards his right of access to court. He maintained that a married father in similar circumstances enjoyed the full protection of Articles 8 and 6 (art. 8, art. 6). 62. Having regard to its findings in respect of both of these provisions (see paragraphs 55 and 60 above) the Court does not consider it necessary to examine this complaint (see the above-mentioned Open Door and Dublin Well Woman judgment, p. 32, para. 83). V. APPLICATION OF ARTICLE 50 (art. 50) 63. Article 50 (art. 50) of the Convention provides as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 1. Pecuniary loss 64. The applicant claimed IR £2,000 which he had been obliged to pay before his entitlement to legal aid in respect of the guardianship and custody proceedings. 65. The Government made no objection. The Court considers that this sum should be awarded in full. 2. Non-pecuniary loss 66. The applicant submitted that he should be awarded substantial damages having regard to the fact that his daughter has now been adopted following two years of traumatic court proceedings and that it is unlikely that he will ever be re-united with her. He emphasised, as previously mentioned, that he was not seeking to overturn the adoption order (see paragraph 46 above). 67. The Government contended that a finding of a violation would constitute adequate just satisfaction in the circumstances of the case. 68. The Court is of the view that damages are appropriate in this case having regard to the trauma, anxiety and feelings of injustice that the applicant must have experienced as a result of the procedure leading to the adoption of his daughter as well as the guardianship and custody proceedings. It awards him IR £10,000 under this head. B. Costs and expenses 69. The applicant claimed a total amount of IR £42,863 by way of costs and expenses. He submitted inter alia an affidavit from a practising cost accountant in Ireland by way of substantiation of the reasonableness of his claim. 70. The Government submitted that there should be a reduction of IR £5,000 in respect of solicitor ’ s fees and IR £3,700 in respect of counsel ’ s fees. 71. The Court observes that whereas the applicant has furnished it with a detailed substantiation of his claim the Government have provided no evidence in support of their submission. In such circumstances the claim should be allowed in full less 51,691.29 French francs already paid by way of legal aid in respect of fees and expenses. This amount is to be increased by any value-added tax that may be chargeable. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It observed that the essential problem in the present case was with the fact that Irish law permitted the applicant’s child to have been placed for adoption shortly after her birth without his knowledge or consent. Such a state of affairs had not only jeopardised the proper development of the applicant’s ties with the child but also set in motion a process which was likely to prove to be irreversible, thereby putting the applicant at a significant disadvantage in his contest with the prospective adopters for the custody of the child. The Irish Government having advanced no reasons relevant to the welfare of the applicant’s daughter to justify such a departure from the principles that govern respect for family ties, the Court could therefore not consider that the interference which it had found with the applicant’s right to respect for family life had been necessary in a democratic society. The Court further held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention. The applicant having had no rights under Irish law to challenge the placement decision either before the Adoption Board or before the courts or, indeed, any standing in the adoption procedure generally, his only recourse to impede the adoption of his daughter had been to bring guardianship and custody proceedings. By the time these proceedings had terminated, the scales concerning the child’s welfare had tilted inevitably in favour of the prospective adopters. |
14 | Family reunification rights | II. RELEVANT DOMESTIC LAW AND PRACTICE 24. Article 63 of the Constitution read as follows: The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority. However, anyone wishing to raise such matters cannot avoid temporarily complying with orders issued by the public authorities by bringing them before the courts. 25. Applications for asylum are determined in the first instance by the Immigration Service and in the second instance by the Refugee Appeals Board under the Aliens Act ( Udlændingeloven ), the relevant provisions of which at the relevant time read as follows Section 7 1. Upon application, a residence permit will be issued to an alien if the alien falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951). 2. Upon application, a residence permit will be issued to an alien if the alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin. An application as referred to in the first sentence hereof is also considered an application for a residence permit under subsection 1. 3. A residence permit under subsections 1 and 2 can be refused if the alien has already obtained protection in another country, or if the alien has close ties with another country where the alien must be deemed to be able to obtain protection. Section 8 1. Upon application, a residence permit will be issued to an alien who arrives in Denmark under an agreement made with the United Nations High Commissioner for Refugees or similar international agreement, and who falls within the provisions of the Convention relating to the Status of Refugees (28 July 1951), see section 7(1). 2. In addition to the cases mentioned in subsection 1, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin, see section 7 subsection 2. 3. In addition to the cases mentioned in subsections 1 and 2, a residence permit will be issued, upon application, to an alien who arrives in Denmark under an agreement as mentioned in subsection 1, and who would presumably have satisfied the fundamental conditions for obtaining a residence permit under one of the provisions of the Aliens Act if he had entered Denmark as an asylum-seeker. 4. In the selection of aliens issued with a residence permit under subsections 1 to 3, the aliens ’ possibilities of establishing roots in Denmark and benefiting from the residence permit, including their language qualifications, education and training, work experience, family situation, network, age and motivation, must be emphasised unless particular reasons make it inappropriate. 5. Unless particular reasons make it inappropriate, it must be made a condition for a residence permit under subsections 1 to 3 that the alien assists in a special health examination and consents to the health information being transmitted to the Danish Immigration Service and the local council of the municipality to which the alien is allocated, and signs a declaration concerning the conditions for resettlement in Denmark. 6. The Minister of Refugee, Immigration and Integration Affairs decides the overall distribution of the aliens to be issued with a residence permit under subsections 1 to 3. 26. Before 1 July 2004 section 9, subsection 1 (ii) had the following wording : Section 9 1. Upon application, a residence permit may be issued to: - ( i ) .... (ii) an unmarried child of a person permanently resident in Denmark or of that person ’ s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark; 27. As from 1 July 2004 section 9 had the following wording : Section 9 1. Upon application, a residence permit may be issued to: - ( i ) .... (ii) an unmarried child under the age of 15 of a person permanently resident in Denmark or of that person ’ s spouse, provided that the child lives with the person having custody of him or her and has not started his or her own family through regular cohabitation, and provided that the person is permanently resident in Denmark: a. is a Danish national; b. is a national of one of the other Nordic countries; c. is issued with a residence permit under section 7 or 8; or d. is issued with a permanent residence permit or a residence permit with a possibility of permanent residence. (iii) ... 28. The age limit referred to in section 9, subsection (ii) was reduced from 18 to 15 years old by Act no. 427 of 9 June 2004. The amendment entered into force on 1 July 2004. The following appears from the explanatory notes: “It has turned out that some parents living in Denmark send their children back to the parents ’ country of origin or a neighbouring country on so-called “re-education journeys” to allow them to be brought up there and be influenced by the values and norms of that county. This particularly occurs in situations where the child has social problems in Denmark. Moreover, there are examples of parents who consciously choose to let a child remain in his or her country of origin, either together with one of the parents or with other family members, until the child is nearly grown up, although the child could have had a residence permit in Denmark earlier. The result of this is that the child grows up in accordance with the culture and customs of its country of origin and is not influenced by Danish norms and values during its childhood. In the Government ’ s view, under-age aliens who will live in Denmark should come to Denmark as early as possible and spend the longest period of their childhood in Denmark in consideration of the child and for integration reasons. Similarly, children and young aliens who already live in Denmark should grow up here, to the extent possible, and not in their parents ’ country of origin. Against that background, the Government finds that the age limit for under-age children ’ s entitlement to family reunification should be reduced from 18 to 15 years. The purpose of such reduction of the age limit for family reunification of children is to counteract both re-education journeys and the cases in which the parents consciously choose to let a child remain in its country of origin until the child is nearly grown up. However, a residence permit will still have to be issued to children over 15 years of age based on an application for family reunification if a refusal would be contrary to article 8 of the Convention ... In cases where refusal of family reunification will be contrary to Denmark ’ s treaty obligations, and where section 9, subsection 1 (ii), of the Aliens Act does not allow for family reunification, a residence permit will thus have to be issued under section 9c, subsection 1, of the Aliens Act ... In cases where the child has spent by far the largest part of his or her childhood in Denmark, and where the ties with the parents ’ country of origin are very poor, including where the child has attended school in Denmark only, or where the child speaks Danish, but not the language spoken in the parents ’ country of origin, regard for the best interest of the child might also imply, in these circumstances, that family reunification in Denmark must be granted. Circumstances may also exist in other situations which make it cogently appropriate to grant a residence permit in consideration of the best interest of the child even though the child is 15 years old or more at the time of the application. 29. Furthermore, the Aliens Act set out: Section 9c 1. Upon application, a residence permit may be issued to an alien if exceptional reasons make it appropriate, including regard for family unity ... Section 17 1. A residence permit lapses when the alien gives up his residence in Denmark. The permit also lapses when the alien has stayed outside Denmark for more than 6 consecutive months. Where the alien has been issued with a residence permit with a possibility of permanent residence and has lived lawfully for more than 2 years in Denmark, the residence permit lapses only when the alien has stayed outside Denmark for more than 12 consecutive months. The periods here referred to do not include absence owing to compulsory military service or any service substituted for that. 2. Upon application, it may be decided that a residence permit must be deemed not to have lapsed for the reasons given in subsection 1. 3. ... Section 30 1. An alien who is not, under the rules of Parts I and III to Va, entitled to stay in Denmark, must leave Denmark. 2. If the alien does not leave Denmark voluntarily, the police must make arrangements for his departure. The Minister of Refugee, Immigration and Integration Affairs lays down more detailed rules in this respect. 3. ... Section 31 1. An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country. 2. An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but see subsection 1. Section 46 1. Decisions pursuant to this Act are made by the Immigration Service, except as provided by sections 9(19) and (20), 46a to 49, 50, 50a, 51(2), second sentence, 56a, (1) to (4), 58i and 58j, but see section 58d, second sentence. 2. Apart from the decisions mentioned in sections 9g(1), 11d, 32a, 33, 34a, 42a(7), first sentence, 42a (8), first sentence, 42b(1), (3) and (7) to (9), 42d(2), 46e, 53a and 53b, the decisions of the Immigration Service can be appealed to the Minister of Refugee, Immigration and Integration Affairs ... Section 52 1. An alien who has been notified of a final administrative decision made under section 46 may request, within 14 days after the decision has been notified to the alien, that the decision is submitted for review by the competent court of the judicial district in which the alien is resident or, if the alien is not resident anywhere in the Kingdom of Denmark, by the Copenhagen City Court, provided that the subject matter of the decision is: ( i ) refusal of an application for a residence permit with a possibility of permanent residence under section 9, subsection 1 (ii); (ii) lapse, revocation, or refusal of renewal of such permit; ... 2. The case must be brought before the court by the Danish Immigration Service, which shall transmit the case to the court, stating the decision appealed against and briefly the circumstances relied on, and the exhibits of the case. 3. The court shall see that all facts of the case are brought out and shall itself decide on examination of the alien and witnesses; procuring of other evidence; and whether proceedings are to be heard orally. If the alien fails without due cause to appear in court, the court shall decide whether the administrative decision appealed against is to be reviewed without the alien being present or the matter is to be dismissed or proceedings stayed. 4. If found necessary by the court, and provided that the alien satisfies the financial conditions under section 325 of the Administration of Justice Act, counsel must be assigned to the alien, except where he himself has retained counsel. ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30. The applicant complained that the refusal to reinstate her residence permit in Denmark was in breach of Articles 3 of the Convention, which reads : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 31. The applicant pointed out that she had raised her fear of being returned to Somalia in the questionnaire of 12 July 2007. It had thus been open to the immigration authorities to consider the said questionnaire as an application for asylum. In any event she maintained that an asylum application was inappropriate and irrelevant to the substance of her claim which was centred on the refusal to re ‑ instate her residence permit. 32. The Government contended that this complaint should be declared inadmissible due to non-exhaustion of domestic remedies because the applicant had failed to raise before the relevant Danish authorities, either in form or substance, the complaint made to the Court. 33. They pointed out that a deportation was always subject to the conditions in section 31, subsection 1, of the Aliens Act according to which an alien may not be returned to a country where he will be at risk of the death penalty or of ill ‑ treatment. 34. The judicial review that took place in the present case under section 52 of the Aliens Act as to the lapse of residence permit and on family reunification did not include an assessment of the possible risk upon return to Somalia. 35. Moreover, when the decisions in dispute were issued, the authorities were not aware that the applicant had re ‑ entered Denmark illegally. They assumed that she was still in Kenya and therefore did not go further into the question of deportation. Accordingly, it was only later that the applicant was advised of the possibility of submitting an application for asylum under section 7 of the Aliens Act, of which she did not avail herself. 36. Finally, for the sake of completeness, the Government submitted that if the applicant wished to return to Kenya, she would have to apply to enter that country herself; the immigration authorities were not in a position to apply for her. 37. The Court reiterates that the purpose of the rule on exhaustion of domestic remedies 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 Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 38. Under Danish law the question of whether an alien risks the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in case of return to his country of origin is examined by the Immigration Service and, on appeal, by the Refugee Appeals Board. 39. During her stay in Denmark, the applicant has not applied for asylum, even though the Ministry of Refugee, Immigration and Integration Affairs, in their letter of 27 January 2010, in addition to advising the applicant of her duty to leave Denmark, also advised her of the possibility of submitting an application for asylum under section 7 of the Aliens Act. It was specified that an application should be submitted in person to the Immigration Service or to the police. The applicant did not avail herself of that possibility. 40. Accordingly, the Danish authorities have not had the opportunity to consider whether the applicant would risk being subjected to treatment contrary to Article 3 upon return to Somalia. 41. It follows that this part of the application is inadmissible for non ‑ exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 42. The applicant further complained that the refusal to reinstate her residence permit in Denmark was in breach of Articles 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 43. The Government contested that argument. 44. 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 45. The applicant maintained that the Danish authorities ’ decision to refuse to reinstate her residence permit had been disproportionate to the aim pursued. She grew up in Denmark, spoke the language, went to school there and had her close family there. Accordingly, Denmark was the only place where she could develop aspects of her personality and relationships with others that were vital to private life. 46. In the applicant ’ s view, the Danish authorities had completely disregarded the manner in which she had been removed as a minor from Denmark by her father and subsequently exploited by being forced to take care of her paternal grandmother. The applicant thus alleged that she had been a victim of human trafficking as defined in Article 4(a) and 4(c) of the Council of Europe Convention on Action against Trafficking in Human Being. In such a case, where her father ’ s actions amounted to a criminal offence and were clearly not in her best interests, the State had a duty to look past the exercise of parental authority in order to protect her interest. Accordingly, when in August 2005, the applicant, who was still a minor, applied to re ‑ enter Denmark and the Danish authorities became aware of her situation, they had an obligation to protect her best interest, namely to reinstate her residence permit, allow her to resume her education, and reunite her with her mother and siblings in Denmark. 47. Finally, she maintained that in the light of the conditions in Somalia and the considerable expense of travelling elsewhere, it could not be expected that the applicant ’ s future family life should take place outside Denmark. 48. The Government maintained that a fair balance had been struck between the applicant ’ s interest on the one hand and the State ’ s interest in controlling immigration on the other hand. It had been noted that the applicant lived lawfully in Denmark from the age of seven to the age of fifteen and thus spent a large part of her childhood there. She had some Danish skills, and from 1995 until August 2002 she attended various schools, from some of which she was expelled. However, it had also been noted that the applicant had strong ties with Kenya and Somalia. She had family there and spoke Somali fluently. The applicant stayed in Kenya from 1991 to 1995 and from 2003 to 2005. The applicant ’ s father escorted her there in 2003 and visited her in 2005; there were thus no obstacles for him to enter that country. Likewise, the applicant ’ s mother had resided in Somalia and Kenya and there were no obstacles for her to enter any of those countries to exercise family life with the applicant there. The applicant ’ s siblings had all attained the age of majority. 49. In addition, the interruption of the applicant ’ s stay in Denmark and her separation from her family there was caused by a conscious decision by her parents because the applicant had problems in school and difficulties with her parents, who disapproved of certain aspects of her behaviour. Accordingly, apart from the applicant ’ s own statement, there was no evidence establishing that she was sent to Kenya for the purpose of exploitation and that she had been a victim of human trafficking. 50. As to the applicant ’ s allegation that she was prevented from resuming her education, the Government pointed out that the applicant was expelled from various schools in Denmark due to discipline problems. Moreover, according to the applicant ’ s mother ’ s letter of 24 November 2005 the purpose of sending the applicant to Kenya had been for her to attend school there, although this never happened. The Government thus contend that the applicant ’ s educational problems could not be attributed to others than herself and her parents. 51. In these circumstances they found that it had not been disproportionate to refuse to reinstate the applicant ’ s residence permit when she applied at the age of seventeen years and nine months, after more than two years of absence. 52. Finally, the Government noted that the applicant could submit a new application for a residence permit based on family unification under section 9c of the Aliens Act. 2. The Court ’ s assessment 53. By way of introduction, the Court notes that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligation inherent in effective “respect” for private and family life. 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. The Court does not find it necessary to determine whether in the present case the impugned decision, to refuse to reinstate the applicant ’ s residence permit, constitutes an interference with her exercise of the right to respect for her private and family life or is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation. In the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. 54. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants ’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State ’ s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see inter alia Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, §§ 67 and 68; Gül v. Switzerland, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, § 38; Ahmut v. the Netherlands, judgment of 28 November 1996, Reports of Judgments and Decisions 1996-VI, § 63 and no. 13594/03, and Priya v. Denmark ( dec .), 6 July 2006. 55. The applicant was still a minor when, on 9 August 2005, she applied to be reunited with her family in Denmark. She had reached the age of majority when the refusal to reinstate her residence permit became final on 19 January 2008, when leave to appeal to the Supreme Court was refused. The Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted “family life”. Furthermore, Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual ’ s social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of “private life” within the meaning of Article 8. Regardless of the existence or otherwise of a “family life”, the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the “family life” rather than the “private life” aspect ( Maslov v. Austria [GC], no. 1638/03, §§ 62-63, 23 June 2008. 56. Accordingly, the measures complained of interfered with both the applicant ’ s “private life” and her “family life”. 57. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of Article 8 as being “in accordance with the law”, 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. 58. It is not in dispute that the impugned measure had a basis in domestic law, namely sections 17 and 9 subsection 1 (ii), and pursued the legitimate aim of immigration control. 59. The main issue to be determined is whether the interference was “necessary in a democratic society” or more concretely whether the Danish authorities were under a duty to reinstate the applicant ’ s residence permit after she had been in Kenya for more than two years. 60. The Court observes that the applicant spent the formative years of her childhood and youth in Denmark, namely from the age of seven to fifteen years old. She speaks Danish and received schooling in Denmark until August 2002. Her divorced parents and older siblings live in Denmark. The applicant therefore had social, cultural and family ties in Denmark. 61. The applicant also had social, cultural and family ties in Kenya and Somalia. She was born in Somalia and lived there from 1987 to 1991. She resided in Kenya from 1991 to 1995. The applicant spoke Somali. It was unclear whether the applicant had family in Somalia but certain that she had family in Kenya. The applicant returned to Kenya in 2003 and took care of her parental grandmother. Her application in August 2005 to re-enter Denmark was refused but she re-entered the country illegally, apparently in June 2007. The applicant ’ s father was a recognised refugee from Somalia. He visited Kenya at least twice, namely in 2003 and 2005. The second time he remarried there. There was no indication that the applicant ’ s mother could not enter Somalia and Kenya. 62. The applicant alleged that she had been a victim of human trafficking and that this fact was ignored by the Danish authorities in their decision to refuse to reinstate her residence permit. The Court notes, however, that the applicant never reported being a victim of human trafficking to the police or to any other Danish authority, including the Danish Embassy in Nairobi, or to the lawyer representing her before the courts in Denmark. Moreover, although the applicant ’ s mother, who shared custody with the applicant ’ s father may not have agreed to the length of the applicant ’ s stay in Kenya or to the fact that the applicant did not receive any schooling there, there are no elements indicating that she did not agree to the applicant being accompanied by her father to Kenya in August 200 3 with a view to residing there temporarily. Nor did the applicant ’ s mother at any time subsequently express openly that the applicant had been a victim of human trafficking. The Danish authorities had thus no reason to take this allegation into account. 63. The applicant also maintained that the Danish authorities had a duty to look past the exercise of parental authority in order to protect her interest and that it was obvious that her father ’ s decision to send her to Kenya was not in her best interest. 64. The Court reiterates in this connection that the exercise of parental rights constitutes a fundamental element of family life, and that the care and upbringing of children normally and necessarily require that the parents decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child ’ s liberty (see, for example Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144 ). 65. It also reiterates that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in a host country, very serious reasons are required to justify expulsion (see, Maslov v. Austria [GC], quoted above, § 75). In the present case the applicant was refused restoration of her lapsed residence permit, as opposed to being expelled due to having committed a crime. Nevertheless, it is undisputed that she spent the formative years of her childhood and youth in Denmark, namely from the age of seven to fifteen years old, that she spoke Danish, that she had received schooling in Denmark until August 2002, and that all her close family remained in Denmark. In these circumstances, the Court also considers that very serious reasons were required to justify the authorities ’ refusal to restore the applicant ’ s residence permit, when she applied from Kenya in August 2005. 66. The Government pointed out that the 12 months time-limit for stay abroad set out in section 17, subsection 1, of the Aliens Act had not changed since the applicant ’ s first entry into Denmark in 1995. Moreover, with effect from 1 July 2004, section 9, subsection (ii), of the Aliens Act was amended, limiting the right to family re-unification to children under 15 years instead of under 18 years, specifically to discourage the practice of some parents of sending their children on “re-upbringing trips” for extended periods of time to be “re-educated” in a manner their parents consider more consistent with their ethnic origins, as it was preferable in the legislator ’ s view for foreign minors living in Denmark to arrive as early as possible and spend as many of their formative years as possible in Denmark. 67. The Court does not question that the said legislation was accessible and foreseeable and pursued a legitimate aim. The crucial issue remains though whether, in the circumstances of the present case, the refusal to reinstate the applicant ’ s residence permit was proportionate to the aim pursued. 68. The Court notes in particular that the applicant was granted a residence permit in Denmark in November 1994 and subsequently entered the country in February 1995, when she was seven year old. Moreover, at the relevant time the applicant had already legally spent more than eight formative years of her childhood and youth in Denmark before, at the age of fifteen, she was sent to Kenya, which was not her native country. The case thus differs significantly from Ebrahim and Ebrahim v. the Netherlands ( dec .) of 18 March 2003, in which the first applicant entered the Netherlands with his family when he was ten years old and applied for asylum or a residence permit. When the boy was thirteen years old, serious tensions had developed between him and his stepfather who disapproved of the boy ’ s behaviour in the Netherlands. Therefore, the boy was returned to Lebanon to stay with his maternal grandmother in a refugee camp to become acquainted with his native country. Neither the boy nor any members of his family had at that time been granted a residence permit in the Netherlands. After three years in Lebanon, having reached the age of sixteen, the boy applied in vain to return to the Netherlands. The Court stated specifically in that case that “ that due consideration should be given to cases where a parent has achieved settled status in a country and wants to be reunited with her child who, for the time being, finds himself in the country of origin, and that it may be unreasonable to force the parent to choose between giving up the position which she has acquired in the country of settlement or to renounce the mutual enjoyment by parent and child of each other ’ s company, which constitutes a fundamental element of family life (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 68). The issue must therefore be examined not only from the point of view of immigration and residence, but also with regard to the mutual interests of the applicants ”. 69. The Court also notes that although the legislation at issue aimed at discouraging parents from sending their children to their countries of origin to be “re ‑ educated” in a manner their parents consider more consistent with their ethnic origins, the children ’ s right to respect for private and family life cannot be ignored. 70. In the present case, the applicant maintained that she had been obliged to leave Denmark to take care of her grandmother at the Hagadera refugee camp for more than two years; that her stay there was involuntary; that she had no means to leave the camp; and that her father ’ s decision to send her to Kenya had not been in her best interest. 71. The Ministry of Refugee, Immigration and Integration Affairs addressed some of these issues in its decision of 1 October 2007. It stated, among other things, “neither [the applicant] nor her parents contacted the immigration authorities during her stay abroad, and it has not been substantiated that illness or other unforeseen events prevented such contact. Although the distance from Hagadera to Nairobi is significant [485 km] and it can be assumed that [the applicant] did not have the means to travel to Nairobi, the Ministry finds that these circumstances did not prevent [the applicant ’ s] parents from contacting the immigration authorities before [the applicant ’ s ’ ] departure, which was planned. ... It is stated for the record that it was not [the applicant ’ s] decision to leave Denmark and stay away so long. The ministry finds that this will not lead to a different outcome of the case as [the applicant ’ s] parents had custody over her at the time of her departure ... they could thus lawfully make decisions about [her] personal circumstances ... ”. The Court notes in this respect that the immigration authorities had discretionary powers by virtue of section 9 c to issue a residence permit to the applicant if exceptional reasons made it appropriate, including regard for family unity and by virtue of section 17, subsection 2 of the Aliens Act to decide that a residence permit must have been deemed not to have lapsed for the reasons given in subsection 1. However, under both provisions the immigration authorities found against the applicant. 72. The immigration authorities have submitted that they were not aware at the relevant time that the applicant had re ‑ entered Denmark. The same applied to the applicant ’ s appointed lawyer, the City Court and the High Court. Accordingly, the applicant was only heard in person at the Danish Embassy in Nairobi in August 2005, when she was seventeen years and nine months old. 73. Moreover, the applicant ’ s view that her father ’ s decision to send her to Kenya for so long had been against her will and not in her best interest, was disregarded by the authorities with reference to the fact that her parents had custody of her at the relevant time. The Court agrees that the exercise of parental rights constitutes a fundamental element of family life, and that the care and upbringing of children normally and necessarily require that the parents decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child ’ s liberty (see, for example Nielsen v. Denmark, 28 November 1988, § 61, Series A no. 144). Nevertheless, in respecting parental rights, the authorities cannot ignore the child ’ s interest including its own right to respect for private and family life. 74. The applicant ’ s view on her right to respect for family life was also disregarded by, for example, the Migration Service with reference to the fact that she had not seen her mother for four years; that it had been her mother ’ s voluntary decision to send the applicant to Kenya; and that the applicant could still enjoy family life with her mother to the same extent as before. In the Court ’ s view, however, the fact that the applicant ’ s mother did not visit the applicant in Kenya, or that mother and child apparently had very limited contact for four years, can be explained by various factors, including practical and economical restraints, and can hardly lead to the conclusion that the applicant and her mother did not wish to maintain or intensify their family life together. 75. Finally, in May 2003, when the applicant was fifteen years old and sent to Kenya, even if section 17 of the Aliens Act set out that the applicant ’ s residence permit may lapse after twelve consecutive months abroad, the applicant could still apply for a residence permit in Denmark by virtue of Section 9, subsection 1(ii) of the Aliens Act in force at the relevant time. The latter provision was amended, however, as from 1 July 2004, when the applicant was still in Kenya, reducing the right to family reunification to children under fifteen years old instead of eighteen years old. The Court does not question the amended legislation as such but notes that the applicant and her parents could not have foreseen this amendment when they decided to sent the applicant to Kenya or at the time when the twelve month lime-limit expired. 76. Having regard to all the above circumstances, it cannot be said that the applicant ’ s interests have sufficiently been taken into account in the authorities ’ refusal to reinstate her residence permit in Denmark or that a fair balance was struck between the applicants ’ interests on the one hand and the State ’ s interest in controlling immigration on the other. 77. There has accordingly been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLES 4, 13 AND 14 OF THE CONVENTION AND OF ARTICLE 2 OF PROTOCOL NO.1 TO THE CONVENTION. 78. The applicant has also contended that the refusal to reinstate her residence permit in Denmark contravened Article 4, 13 and 14 of the Convention and of Article 2 of Protocol No. 1 to the Convention. 79. The Court notes that under the notion of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his or her case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised by the applicant, at least in substance, during the proceedings in question. On this point the Court refers to its established case-law. In the present case, the applicants failed to raise either in form or in substance the above complaints that are made to the Court. 80. The Court notes that the applicant failed to raise, either in form or substance, before the domestic courts the complaint made to it under Article 4, 13 and 14 of the Convention and of Article 2 of Protocol No. 1 to the Convention. 81. It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 83. The applicant claimed 15, 000 euros (EUR) in respect of non-pecuniary damage. 84. The Government found the amount excessive and submitted that finding a violation would in itself constitute adequate just satisfaction. 85. The Court awards the applicant EUR 15,000 in respect of non-pecuniary damage. B. Costs and expenses 86. The applicant also claimed 8,625 GBP pounds (equivalent to EUR 10,435 [1] ) for the costs and expenses incurred before the Court. 87. The Government found the amount excessive and noted that the applicant had failed to apply for legal aid under the Danish Legal Aid Act ( Lov 1999-12-20 nr. 940 om retshjælp til indgivelse og førelse af klagesager for internationale klageorganer i henhold til menneskerettigheds - konventioner ) according to which applicants may be granted free legal aid for their lodging of complaints and the procedure before international institutions under human rights conventions. 88. 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, the above criteria, and awards made in comparable cases against Denmark ( see, among others, Hasslund v. Denmark, no. 36244/06, § 63, 11 December 2008 and Christensen v. Denmark, no. 247/07, § 114, 22 January 2009 ), the Court considers it reasonable to award the sum of EUR 6,000 covering costs for the proceedings before the Court. C. Default interest 89. 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 in particular that the applicant could be considered a settled migrant who had lawfully spent all or the major part of her childhood and youth in the host country so that very serious reasons would be required to justify the refusal to renew her residence permit. Although the aim pursued by the law on which that refusal was based was legitimate – discouraging immigrant parents from sending their children to their countries of origin to be “re-educated” in a manner their parents considered more consistent with their ethnic origins – the children’s right to respect for private and family life could not be ignored. In the circumstances of the case, it could not be said that the applicant’s interests had been sufficiently taken into account or balanced fairly against the State’s interest in controlling immigration. |
949 | Deprivation of voting rights as part of a criminal investigation | II. RELEVANT DOMESTIC LAW A. Provisions concerning preventive measures 30. The power to impose preventive measures was introduced by Law no. 1423 of 27 December 1956. Such measures are intended to prevent individuals who are considered “socially dangerous” from committing offences. The statute indicates three groups of socially dangerous persons : (a) anyone who, on the basis of factual evidence, must be regarded as a habitual offender; (b) anyone who, on account of his conduct or lifestyle and on the basis of factual evidence, must be regarded as habitually deriving his income from the proceeds of crime; and (c) anyone who, on account of his conduct and on the basis of factual evidence, must be regarded as having committed offences endangering the physical or mental integrity of minors or posing a threat to society, security or public order. 31. Section 3 of Law no. 1423/56 provides that persons who are socially dangerous may be placed under special police supervision. The competent court sits in camera and must give a reasoned decision after hearing the public prosecutor and the person concerned, who has the right to file memorials and to be represented by a lawyer. Both parties may lodge an appeal and/or an appeal on points of law, which have no suspensive effect. 32. When imposing a preventive measure, the court must fix its duration and specify the conditions with which the person concerned must comply. In accordance with paragraph 1 of section 11 of Law no. 1423/56, the special supervision period starts to run on the day on which its addressee is notified of the relevant order and automatically ends when the period of time fixed in the order has elapsed. B. Provisions on disenfranchisement 33. 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. 34. 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 civic 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. C. Article 117 of the Constitution 35. Article 117 of the Constitution confers legislative power on the regions. It sets out the competence of the regions, inter alia, for regional administrative planning, local policy, public health, education, local museums and libraries, town planning, tourism, traffic regulations, navigation, quarries and peat bogs, hunting, agriculture, forests and handicraft. Article 117 also states that the regions have legislative power in other matters established by constitutional laws. Regional laws are enacted by the regional councils (Article 121 § 2 of the Constitution). THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 36. The applicant complained that he had been illegally kept under special police supervision after the expiry of the order of 24 March 1994 and that no compensation was available to him for the undue prolongation of the preventive measure. 37. In its decision on the admissibility of the application, the Court considered that this complaint should be examined under Article 2 of Protocol No. 4, which reads as follows: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.” 1. The parties ’ submissions 38. The Government considered that the restrictions imposed on the applicant were in accordance with the law, the decision of the Lecce Court of Appeal being the result of an interpretation of the relevant domestic provisions in conformity with the Court of Cassation ’ s jurisprudence. They referred, in particular, to a judgment given by the Court of Cassation on 19 March 1980 in Catalano, confirmed by another judgment adopted by the First Division on 25 May 2000 (no. 3794). According to these decisions, the starting- point for the calculation of the duration of a preventive measure should not be the date on which notice of it was served, but the time when the measure actually started to be applied. 39. The Government submitted that it was the domestic courts ’ role to solve problems of interpretation of national legislation. In the present case, the error made by the competent authorities was of a formal nature and did not entail a violation of the applicant ’ s rights. The latter could not therefore be considered a victim under the Convention. 40. The applicant observed that in the Italian legal system the judge should apply the law and not create it, the principle of strict legality in the criminal field preventing him from overstepping the bounds resulting from the wording of the relevant provisions. In any case, the starting- point of the special supervision could not depend on the discretion of the prefect or of the police, but should be fixed by the reasoned decisions of the competent judicial bodies. 41. The applicant challenged the existence of the case-law supposedly followed by the Lecce Court of Appeal. In his view, the judgment of 1980 in Catalano constituted an isolated decision, concerning a preventive measure which had not been fully implemented because the individual in question had been authorised to move abroad. The judgment of 25 May 2000 dealt with the suspension of the preventive measure by reason of the detention of the person concerned in a prison. The applicant considered that the Court of Cassation ’ s judgment of 16 December 1996 quashing the decision of the Lecce Court of Appeal was not the result of a change in the case-law, but on the contrary a further statement of the correct interpretation of section 11 of Law no. 1423/56. 2. The Court ’ s assessment 42. The Court first observes that the order imposing the special supervision by the police was served on the applicant on 3 May 1994 (see paragraph 12 above). However, it was only on 25 July 1995 that the Ostuni police drafted a document setting out the obligations imposed on the applicant (see paragraphs 14 - 15 above). 43. The Court finds it hard to understand why there should have been a delay of over one year and two months in drafting the actual obligations arising from a decision which was immediately enforceable and concerned a fundamental right, namely the applicant ’ s freedom to come and go as he pleased (see, mutatis mutandis, Raimondo v. Italy, judgment of 22 February 19 94, Series A no. 281-A, p. 19, § 39). 44. Moreover, it is to be noted that in its judgment of 16 December 1996 the Court of Cassation, making use of its uncontested right to interpret the relevant provisions of domestic law, declared that the special supervision imposed on the applicant had ceased to apply on 2 May 1995 (see paragraph 21 above). 45. It is not the role of the Court to determine whether this interpretation was correct or whether it was foreseeable in view of the relevant domestic precedents (see, mutatis mutandis, Lukanov v. Bulgaria, judgment of 20 March 1997, Reports of Judgments and Decisions 1997-II, p. 543, § 41). For the purposes of the present case, it is sufficient to observe that the Court of Cassation recognised that the applicant had been subject, between 2 May 1995 and 24 July 1996, to a measure affecting his liberty of movement which was time -barred. However, the Court of Cassation did not provide any redress for the damage suffered by the applicant as a consequence of the unlawful prolongation of the special supervision. Moreover, it has not been suggested by the Government that the applicant could have made use of any other domestic remedy to obtain compensation. 46. In the light of the above, the Court concludes that between 2 May 1995 and 24 July 1996 the interference with the applicant ’ s liberty of movement was neither “in accordance with law ” nor necessary. There has accordingly been a violation of Article 2 of Protocol No. 4. II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 47. The applicant complained that he was disenfranchised for a longer period than was lawful and that, as a result, he had been prevented from voting in the regional council election of 23 April 1995 and the parliamentary election of 21 April 1996. He relied on Article 3 of Protocol No. 1, which reads as follows: “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.” 1. The parties ’ submissions 48. The applicant submitted that his disenfranchisement after 2 May 1995 was unlawful, as it was ordered on the basis of a special police supervision measure which had already expired. 49. In the Government ’ s opinion, the disenfranchisement was lawful in so far as it had to be regarded as the consequence of a lawfully imposed special supervision measure. 2. The Court ’ s assessment (a) Applicability of Article 3 of Protocol No. 1 50. The Court should first ascertain whether Article 3 of Protocol No. 1 applies to the elections complained of. In this respect, it observes that Article 3 of Protocol No. 1 guarantees the “choice of the legislature” and that the word “legislature” does not necessarily mean the national parliament: it has to be interpreted in the light of the constitutional structure of the State in question (see Cherepkov v. Russia (dec.), no. 51501/ 99, ECHR 2000-I). In Mathieu-Mohin and Clerfayt v. Belgium, the 1980 constitutional reform had vested in the Flemish Council sufficient competence and powers to make it, alongside the French Community Council and the Walloon Regional Council, a constituent part of the Belgian “legislature”, in addition to the House of Representatives and the Senate (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, p. 23, §53; see also Matthews v. the United Kingdom [GC], no. 24833/94, §§ 40-54, ECHR 1999-I, on the application of Article 3 of Protocol No. 1 to the European Parliament; and X v. Austria, no. 7008/75, Commission decision of 12 July 1976, Decisions and Reports (DR) 6, pp. 120- 21, on the application of Article 3 of Protocol No. 1 to regional parliaments ( Landtage ) in Austria ). 51. In the present case, there is no doubt that the national parliament is a legislative body within the meaning of Article 3 of Protocol No. 1. As regards the regional councils, the Commission left open the question whether these organs might be deemed to be part of the legislature in Italy (see Luksch v. Italy, no. 27 614/95, Commission decision of 21 May 1997, DR 89 -B, pp. 76-78). 52. The Court notes that, under Articles 117 and 121 § 2 of the Constitution, the regional councils are competent to enact, within the territory of the region to which they belong, laws in a number of pivotal areas in a democratic society, such as administrative planning, local policy, public health, education, town planning and agriculture (see paragraph 35 above). The Court therefore considers that the Constitution vested competence and powers in the regional councils that are wide enough to make them a constituent part of the legislature in addition to the parliament. This has not been contested by the Government. 53. It follows that Article 3 of Protocol No. 1 is applicable both to the parliamentary election of 21 April 1996 and the regional election of 23 April 1995. (b) Merits of the applicant ’ s complaint 54. The Court points out that implicit in Article 3 of Protocol No. 1 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. 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 this provision 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 following judgments: Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52; Gitonas and Others v. Greece, 1 July 1997, Reports 1997-IV, p. 1 233, § 39; Ahmed and Others v. the United Kingdom, 2 September 1998, Reports 1998-VI, p. 2384, § 75; Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV; and Sadak and Others v. Turkey (no. 2), nos. 25144/94, 26149/95 to 26154/95, 27100/95 and 27101/95, § 31, ECHR 2002-IV). 55. The Court observes that persons who are subject to special police supervision are automatically struck off the electoral register (see paragraph 3 3 above). The prefect notifies the municipality accordingly and the Municipal Electoral Committee removes the name of the person concerned from the electoral register (see paragraph 34 above). 56. In the present case, the order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on 7 April 1994 (see paragraph 12 above). However, it was only on 10 January 1995 that the Ostuni Municipal Electoral Committee decided to strike the applicant off the electoral register (see paragraph 23 above). 57. The Court accepts that some delay in accomplishing the administrative tasks relating to the enforcement of a domestic court ’ s decision is often inevitable; however, it must be kept to a minimum (see, mutatis mutandis, Giulia Manzoni v. Italy, judgment of 1 July 1997, Reports 1997-IV, p. 1191, § 25). 58. In the present case, more than nine months elapsed between the date on which the order imposing the preventive measure was forwarded to the prefect and the date on which the applicant was disenfranchised. In the Court ’ s view, such a delay is excessive. No explanation for it has been provided by the Government. 59. Moreover, the delay in issue adversely affected the applicant ’ s ability to vote both in the parliamentary and regional elections. In fact, had the disenfranchisement been applied in due time and for the statutory period of one year, this measure would have ceased before 23 April 1995, the date of the regional election and long before 21 April 1996, the date of the parliamentary elections. In any case, as far as the latter election is concerned, the Court reiterates its finding that the prolongation of the special police supervision after 2 May 1995 was neither in accordance with law nor necessary (see paragraph 46 above). The same applies to a measure which, like the disenfranchisement, was merely an ancillary and automatic consequence of the police supervision. 60. There has therefore been a violation of Article 3 of Protocol No. 1. III. 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 alleged that the way in which his liberty of movement had been violated caused him great distress, reducing his social contacts and his ability to work. As a result, the company he had owned and directed since 1985 was unable to make any profit after 1995. He had also been prevented from exercising his normal civic rights and had not been eligible for the assignment of public works. In view of the above, the applicant claimed a lump sum of 50,000 euros (EUR) for both non-pecuniary and pecuniary damage. 63. The Government observed that the interference complained of had lasted from 2 May 1995 until 24 July 1996 and that in 1995 the activity of the applicant ’ s company had not been substantially affected. As far as 1996 was concerned, the applicant had failed to produce any evidence that the alleged loss of profit was a consequence of the preventive measure imposed on him, which had not, as such, prevented him from working. Moreover, the applicant had not shown that he might have had the possibility of obtaining a public works contract. As to the non-pecuniary damage, the Government considered that the finding of a violation constituted in itself sufficient just satisfaction. 64. The Court observes that the obligations imposed on the applicant by the special supervision measure (see paragraph 15 above) did not prevent him from pursuing a professional activity. Moreover, the applicant has failed to show that he had had the possibility of obtaining a public works contract. The Court therefore concludes that there is no causal link between the violations of the Convention and the alleged pecuniary damage, and rejects the applicant ’ s claims in this respect. 65. However, the Court finds that the applicant suffered damage of a non-pecuniary nature. Having regard to the circumstances of the case and ruling on an equitable basis as required by Article 41 of the Convention, it decides to award him EUR 2,000. B. Costs and expenses 66. The applicant claimed EUR 9,433.71 for the costs he had incurred at the domestic level and EUR 5,507.06 for the costs and expenses pertaining to the proceedings before the Convention institutions. 67. The Government left the matter to the Court ’ s discretion. 68. The Court observes that, before lodging his application in Strasbourg, the applicant had exhausted the available domestic remedies regarding the question of the violation of his freedom of movement and his right to vote in the elections. The Court therefore accepts that the applicant incurred some expenses in order to obtain redress both in the domestic legal order and at the European level (see, mutatis mutandis, Rojas Morales v. Italy, no. 39676/98, § 42, 16 November 2000 ). However, it considers the amounts claimed to be excessive. In this connection, the Court observes that at the admissibility stage one of the applicant ’ s complaints was declared inadmissible. It is therefore appropriate to reimburse only in part the costs and expenses alleged by the applicant (see, mutatis mutandis, Sakkopoulos v. Greece, no. 61828/00, § 59, 15 January 2004 ). Having regard to the elements at its disposal and on the basis of an equitable assessment, the Court awards the applicant EUR 3,000 for the costs incurred before the Italian authorities and EUR 2,500 for the costs relating to the European proceedings, and therefore the global sum of EUR 5,500. C. Default interest 69. 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 of Protocol No. 1 to the Convention. It noted in particular that more than nine months had elapsed between the date on which the order imposing the preventive measures had been forwarded to the prefect and the date on which the applicant had been disenfranchised. In the Court’s view, such a delay was excessive. Had the disenfranchisement been applied in due time and for the statutory period of one year, that measure would have ended before the regional elections and well before the parliamentary elections. |
293 | In the context of terrorism and national security considerations | RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE 19. Articles 21-24, 25 and 25-1 of the Civil Code read as follows: Article 21-24 “To be naturalised a person must prove assimilation into the French community, in particular by having sufficient knowledge, depending on the person’s condition, of the language, history, culture, and society of France, the level and means of assessment of that knowledge being regulated by decree in the Conseil d’État, and of the rights and duties conferred by French nationality, and also by adhering to the basic principles and values of the Republic. After such assimilation has been ascertained, the person concerned signs the charter of the rights and duties of the French citizen. This charter, approved by decree in the Conseil d’État, restates the basic principles, values, and symbols of the French Republic.” Article 25 “A person who has acquired the status of French national may, by an order made with the assent of the Conseil d’État, be deprived of his or her French nationality, unless deprivation would have the effect of rendering him or her stateless, where: 1 o He or she has been convicted of an act characterised as a serious offence ( crime or délit ) which constitutes a violation of the fundamental interests of the Nation, or for a serious offence ( crime or délit ) which constitutes an act of terrorism. 2 o He or she has been convicted for an act characterised as a serious offence ( crime or délit ) which is provided for by Chapter II of Title III of Book IV of the Criminal Code. 3 o He or she has been convicted for evading compulsory duties under the Code of National Service. 4 o He or she has committed, for the benefit of a foreign State, acts incompatible with the status of French national and detrimental to the interests of France.” Article 25-1 “Deprivation of nationality is ordered only where the acts committed by the person concerned, as referred to in Article 25, occurred prior to the acquisition of French nationality or within ten years from the date of that acquisition. It can be ordered only within a period of ten years from the perpetration of those acts. [added by Law no. 2006-64 of 23 January 2006] Where the acts of which the person concerned stands accused are those referred to in Article 25 1 o, the periods referred to in the preceding two paragraphs shall be extended to fifteen years.” 20. The Conseil d’État clarified in a decision of 17 November 2006 ( Société CNP assurances, no. 276926) that, with regard to the imposition of administrative penalties, while only those acts constituting a breach of obligations defined by legislative or regulatory provisions in force at the time when those acts were committed were punishable, on the other hand, and unless otherwise provided, texts laying down the conditions for bringing proceedings and the procedures to be followed would apply immediately, even if they led to punishment for misconduct committed prior to their entry into force. 21. Article 61 of Decree no. 93-1362 of 30 December 1993 on declarations of nationality and decisions on naturalisation, redintegration, loss, deprivation and withdrawal of French nationality states as follows: “When the government decides to apply Articles 25 and 25-1 of the Civil Code, it notifies the legal and factual grounds justifying the deprivation of French nationality, by an administrative act or by registered letter with return receipt. Where the address is unknown, a notice is published in the official gazette ( Journal officiel de la République française ). The person concerned will have a period of one month from the date of notification or publication of the notice in that gazette within which to send the Minister for naturalisations his or her observations in defence. On the expiry of this period, the government may declare, by a reasoned order made with the assent of the Conseil d’État, that the person concerned has been deprived of French nationality.” 22. Article L. 521-1 of the Code of Administrative Justice reads as follows: “When an application is made to have an administrative decision, even one rejecting a request, set aside or varied, the urgent applications judge dealing with the case may order that the enforcement of that decision, or some of its effects, be suspended, where the urgency of the case so justifies and where evidence is produced that is sufficient to cast serious doubt on the legality of the decision, at the current stage of the proceedings. When a suspension has been granted, the judge will rule on the application to have the decision set aside or varied as soon as possible. The suspension will be lifted, at the latest, when the judge rules on the application to have the decision set aside or varied.” CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN UNION 23. In its judgment of 2 March 2010, in Rottmann, C ‑ 135/08, EU:C:2010:104, the Court of Justice of the European Union (CJEU) examined a request for a preliminary ruling referred in a case concerning the withdrawal of a person’s naturalisation as a German national, based on the interpretation of EU law concerning EU citizenship. It held in particular as follows: “51. ... it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality. ... 54. Those considerations on the legitimacy, in principle, of a decision withdrawing naturalisation on account of deception remain, in theory, valid when the consequence of that withdrawal is that the person in question loses, in addition to the nationality of the Member State of naturalisation, citizenship of the Union. 55 In such a case, it is, however, for the national court to ascertain whether the withdrawal decision at issue in the main proceedings observes the principle of proportionality so far as concerns the consequences it entails for the situation of the person concerned in the light of European Union law, in addition, where appropriate, to examination of the proportionality of the decision in the light of national law. 56 Having regard to the importance which primary law attaches to the status of citizen of the Union, when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality. ... 59 Having regard to the foregoing, ... it is not contrary to European Union law, in particular to Article 17 EC, for a Member State to withdraw from a citizen of the Union the nationality of that State acquired by naturalisation when that nationality has been obtained by deception, on condition that the decision to withdraw observes the principle of proportionality.” 24. In its judgment of 12 March 2019, in M.G. Tjebbes and Others, C-221/17, EU:C:2019:189, the CJEU examined a request for a preliminary ruling referred in a case concerning a refusal to examine passport applications on account of a person’s loss of Dutch nationality on grounds of absence from the country, based on the interpretation of Articles 20 and 21 of the Treaty on the Functioning of the European Union and Article 7 of the EU Charter of Fundamental Rights. It held in particular as follows: “33. ... it is legitimate for a Member State to wish to protect the special relationship of solidarity and good faith between it and its nationals and also the reciprocity of rights and duties, which form the bedrock of the bond of nationality (judgment of 2 March 2010, Rottmann, C ‑ 135/08, EU:C:2010:104, paragraph 51). ... 35. ... when exercising its competence to lay down the conditions for acquisition and loss of nationality, it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. It is also legitimate for a Member State to wish to protect the unity of nationality within the same family. ... 37. The legitimacy, in principle, of the loss of the nationality of a Member State in those situations is indeed supported by the provisions of Article 6 and Article 7(3) to (6) of the Convention on the Reduction of Statelessness which provide that, in similar situations, a person may lose the nationality of a Contracting State in so far as he does not become stateless. ... ... 40. ... it is for the competent national authorities and the national courts to determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law ...” INTERNATIONAL LAW 25. The European Convention on Nationality of the Council of Europe, of 6 November 1997 (signed but not ratified by France), provides in particular as follows: Article 7 Loss of nationality ex lege or at the initiative of a State Party “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: a voluntary acquisition of another nationality; 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; c voluntary service in a foreign military force; d conduct seriously prejudicial to the vital interests of the State Party; e lack of a genuine link between the State Party and a national habitually residing abroad; f where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled; g adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents. 2 A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by sub-paragraphs c and d of paragraph 1. However, children shall not lose that nationality if one of their parents retains it. 3 A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, sub-paragraph b, of this article.” 26. Article 15 of the Universal Declaration of Human Rights of 10 December 1948 reads as follows: “1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” THE LAW JOINDER OF THE APPLICATIONS 27. 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 28. The applicants complained that the order depriving them of their nationality breached their right to respect for their private life. They relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Admissibility 29. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 30. The applicants began by emphasising the eminently political nature of the measure depriving them of nationality. They observed that it had been announced in the National Assembly by the Minister of the Interior on 6 October 2015, that the following day the newspaper Le Monde had published a detailed article, referring in particular to a lack of remorse and of respect for French values and principles that had been attributed to them by the Minister, and that they had received notification of the orders only on 8 October. The measure’s real purpose in their view had therefore been one of political communication. 31. The applicants acknowledged that in their case the Conseil d’État had, for the first time, recognised the need to carry out a full proportionality review, particularly with regard to the right to respect for private life, whereas it had previously held that reliance on Article 8 was invalid in nationality cases. They submitted, however, that its review in their case had been quite superficial. 32. The applicants argued that there had been a disproportionate interference with their right to respect for their private life. The measure had been taken in respect of events that had occurred more than ten years previously, thus demonstrating a lack of diligence, and that the limitation period provided for in Article 25-1 of the Civil Code, which had previously been ten years after an offence, had been extended to fifteen years by a law of January 2006, which post-dated the judgment in their case. They stated that they had rebuilt their lives after the conviction and after serving their sentences, that they were working and had a family life and that two of them were born in France. They further observed that the Government had not taken into account the specific circumstances of their cases or the fact that they were well integrated in France, nor had the Government explained why other individuals convicted in the same case had not been deprived of their nationality. They reiterated that the measure taken against them had been decided in a highly political context, marked by the authorities’ desire to publicly and symbolically express their commitment to combating terrorism. They also pointed out that four of them had Moroccan nationality, that they could therefore be deported to Morocco even though they had no ties there and that they risked being subjected to ill-treatment in that country since they had been convicted for offences related to the Casablanca bombing. They referred in this connection to the judgments in El Haski v. Belgium (no. 649/08, §§ 92-93, 25 September 2012) and Ouabour v. Belgium (no. 26417/10, §§ 71 and 73-75, 2 June 2015) and stated that the proceedings against them had been based on a confession obtained from a suspect during an interrogation in Morocco, most likely by torture. This fear of removal to a country where they would be at risk of inhuman and degrading treatment exacerbated the violation of Article 8 of which they complained. 33. The applicants emphasised that they did not share the Government’s view that depriving them of their nationality had no effect on their right to reside in France. They pointed out that the order in question had entailed, as soon as it was published, the loss of the right to reside in France and, as a result, the right to work there and to receive social benefits. They had consequently been obliged to apply for a “private and family life” residence permit, which had still not been granted, so they only had temporary residence permits valid for three months. They added that two of them (the fourth and fifth applicants) had been the subject of a deportation order, which, although it had not been implemented, showed that their presence in France was no longer secured. 34. Lastly, the parliamentary debates had shown that the decision to deprive them of French nationality was not based on any grounds of general interest and was merely symbolic. This had to be weighed against the consequences of such a measure for the individual: loss of voting rights and eligibility to stand for election, inability to access public and private employment, loss of European citizenship, risk of deportation and, more generally, social exclusion. (b) The Government 35. The Government stated that they did not dispute that deprivation of nationality was capable of infringing the right to respect for private life in so far as that right included the right to one’s identity. They noted that the Conseil d’État had so decided in its judgments in the applicants’ case. 36. They took the view, however, that the deprivation of nationality decided in the present case had been prescribed by law, namely by Articles 25 and 25-1 of the Civil Code. In this connection, they pointed out that the time-limit laid down in Article 25-1 for imposing the measure, which had been ten years from the commission of the offences of which the person concerned stood accused, i.e. those classified as more serious offences ( crimes or délits ) constituting an act of terrorism, had been increased to fifteen years by a Law of January 2006. The Government submitted that, as the Conseil d’État had ruled, it had been correct to apply this new time-limit in the present case, even though the offences dated from 2004, since, in the case of administrative sanctions, the administrative and regulatory provisions laying down the conditions for bringing proceedings and the forms of procedure applied with immediate effect, in accordance with established case-law. 37. The Government further submitted that the applicants had been afforded all the procedural safeguards necessary for them to defend their interests: they had been notified of the intention to deprive them of their nationality in April 2015; they had been given one month to file their observations, which they had done; the draft ministerial orders had then been submitted to the Conseil d’État and the orders had subsequently been adopted with its assent; the applicants had been able to submit an application for judicial review to the Conseil d’État, which had carried out a full review of proportionality; represented by counsel, they had been able to put forward their arguments relating to the procedural compliance and merits of the decisions. The Government added that, in accordance with Article 25 of the Civil Code, the deprivation measure had been decided at a time when the applicants had been convicted by a final judgment, meaning that the substance of the acts of which they stood accused had been addressed in separate proceedings before the criminal courts. 38. Furthermore, in spite of the time that had elapsed between the criminal conviction, which dated from 2007, and the deprivation proceedings, the authorities had conducted those proceedings expeditiously and promptly. In the Government’s submission, this passage of time could be explained by the fact that, in addition to the applicants’ conviction for terrorist offences, it was also on account of the particularly serious security situation that it had appeared necessary to punish the applicants, as France had been hit by a series of major attacks in 2015. In any event, this would not have been detrimental to the applicants since they had enjoyed French nationality during that period. 39. The Government further contended that the deprivation of nationality had not had disproportionate consequences for the applicants’ private life in view of the particular seriousness of the facts which had justified the measures, namely the fact that they had participated, over several years, in a particularly structured terrorist organisation whose goal was international jihad and which had carried out terrorist acts abroad. In their submission, the applicants could legitimately be excluded from the national community in view of the very nature and seriousness of their offences, which revealed an acceptance of values that were radically opposed to French republican principles and therefore reflected a lack of loyalty to the French nation. They referred to the opinion of the public rapporteur before the Conseil d’État, according to which it was doubtful that French nationality constituted an underlying element of the applicants’ personal identity, given that their allegiance to the principles advocated by the terrorist organisation in which they were fully involved was incompatible with an allegiance to the French community. They also emphasised that the applicants had another nationality, that the loss of French nationality had not in itself affected their right to reside in France, and that their removal would require a separate decision, which they could then challenge before the Administrative Court if they so wished. In this connection they explained that deportation proceedings had been initiated in respect of the fourth and fifth applicants but that no decision had been taken to date. They added that the applicants remained legally resident in France since they held temporary residence certificates, valid for three months, which were regularly renewed and which also allowed them to work in France. 40. With regard to the applicants’ allegation that they had been convicted on the basis of testimony obtained by torture in Morocco, the Government responded that it had been rejected by the Paris Criminal Court and that, as they had failed to use the domestic remedies available, their complaint to the Court had to be found inadmissible. The Government further took the view that the applicants could not validly complain about any consequences of the deprivation of nationality for their family life, since the complaint notified by the Court had only concerned the question of respect for their private life. The Court’s assessment 41. The applicants argued in their applications that the measure depriving them of nationality had constituted a violation not only of their right to respect for their private life but also their right to respect for their family life. This latter complaint was, however, declared inadmissible by the Section President, sitting in a single judge formation, at the time when notice of the application was given to the respondent State pursuant to Rule 54 § 2 of the Rules of Court, in so far as it concerned the applicants’ right to respect for their family life. 42. While the removal of an alien from a country where he or she has close relatives may breach that person’s right to respect for his or her family (see, for example, Moustaquim v. Belgium, 18 February 1991, § 36, Series A no. 193), as stated by the Conseil d’État, an order made to deprive a person of French nationality will have no effect on that person’s presence in France. Moreover, the applicants, who had applied for “private and family life” residence permits, thus had certificates of application allowing them to reside in France. If such permits are denied, followed by removal measures against them, they would be able to lodge an appeal with the Administrative Court on the basis, in particular, of their right to respect for their family life. Consequently, the orders depriving the applicants of nationality did not constitute interference with their right to respect for their family life. 43. Nevertheless, even though the Convention and the Protocols thereto do not guarantee a right to a given nationality as such, any arbitrary deprivation of nationality might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual (see Ramadan v. Malta, no. 76136/12, § 85, 21 June 2016, see also K2 v. the United Kingdom (dec.), no. 42387/13, § 45, 7 February 2017). In this connection the Court reiterates that nationality is an element of personal identity (see, among other authorities, Mennesson v. France, no. 65192/11, § 97, ECHR 2014 (extracts)). 44. The Court will therefore examine the measures taken against the applicants in the light of their right to respect for their private life. Its supervision will concern two points (see Ramadan, §§ 86-93, cited above, and K2, §§ 50-63, decision cited above). Firstly, it will ascertain whether the measures were arbitrary; it will thus establish whether they were lawful, whether the applicants enjoyed procedural safeguards, and in particular whether they had access to appropriate judicial review, and whether the authorities acted diligently and promptly. Secondly, it will consider the impact of the deprivation of nationality on the applicants’ private life. 45. The Court notes, firstly, that the administrative authorities did not immediately initiate proceedings for deprivation of nationality following the applicants’ convictions. They informed the applicants of their intention to deprive them of French nationality in April 2015, more than ten years after the acts that led to their conviction for participation in a criminal conspiracy to commit an act of terrorism, almost eight years after the first-instance judgment (judgment of the Paris Criminal Court of 11 July 2007) and almost seven years after the judgment on appeal (judgment of the Paris Court of Appeal of 1 July 2008; only the third and fourth applicants had lodged an appeal). The Court takes note of the Government’s explanation that the fact that France waited until 2015 to deprive the applicants of French nationality stemmed from the fact that it had been affected by a series of major attacks that year. It also notes the applicants’ argument that this timing had given a political connotation to the measure taken against them. The Court is able to accept, however, that in the presence of events of this nature, a State may reinforce its assessment of the bond of loyalty and solidarity existing between itself and persons previously convicted of a serious offence constituting an act of terrorism (see, for example, Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 183, ECHR 2012 (extracts), and Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts)), and that it may therefore, subject to a strict proportionality review, decide to take measures against them with which it had not initially proceeded. The Court accordingly considers that, in the particular circumstances of the present case, the time that elapsed between the applicants’ convictions, which under French law allowed proceedings to be brought for deprivation of nationality, and the date on which those proceedings were actually initiated, is not sufficient in itself to render arbitrary the decision to deprive them of French nationality. 46. As regards the lawfulness of the measure, the Court observes that, at the time of the events in the present case, Article 25-1 of the Civil Code provided that deprivation of nationality could be ordered only within ten years from the time of the commission of the offences on which the criminal conviction was based. In the present case, however, the decisions to deprive the applicants of their French nationality were taken in 2015, even though the most recent offences dated from 2004. The Court notes, however, that the legislature had extended the time-limit to fifteen years in January 2006 (see paragraph 19 above) and that the Conseil d’État had considered in the present case, in accordance with its case-law (see paragraph 20 above), that in respect of administrative sanctions, the administrative and regulatory provisions laying down the conditions for bringing proceedings and the forms of procedure applied immediately on their entry into force (see paragraph 17 above). The Court concludes that the measures taken against the applicants were lawful. It notes, as an additional consideration, that the approach of the Conseil d’État is compatible with the Court’s case-law in respect of Article 7 of the Convention (see, in particular, Coëme and Others v. Belgium, nos. 32492/96 and 4 others, §§ 147-149, ECHR 2000-VII, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 110, 17 September 2009). 47. The Court further notes that the applicants were afforded substantial procedural safeguards. In accordance with Article 61 of Decree no. 93-1362 of 30 December 1993 (see paragraph 21 above), the authorities notified them in advance of their intention to deprive them of French nationality and informed them of the legal and factual grounds for that measure. The applicants were then given one month to submit observations in their defence, which they did. The Conseil d’État was then asked for its opinion, as deprivation of nationality could be decided only after obtaining its assent. The relevant orders, adopted in the light of that assent, contained reasoning in fact and in law, and the applicants had the possibility – of which they availed themselves – of referring the matter to the urgent applications judge on the basis of Article L. 521-1 of the Code of Administrative Justice (see paragraph 22 above) and of seeking judicial review by the Conseil d’État. In particular, they were able to assert their rights under the Convention and, in the context of the action for judicial review, the Conseil d’État carried out a proportionality review and gave a reasoned decision after proceedings whose fully adversarial nature has not been called into question by the applicants, who were represented by lawyers in those proceedings (see paragraphs 11-17 above). 48. The examination of these various factors does not therefore lead to the conclusion that the decisions to deprive the applicants of their French nationality were arbitrary. 49. As to the consequences of these decisions for the applicants’ private life, it is true that their ability to remain in France was thereby undermined. The Court notes in this connection that adversarial proceedings with a view to deportation were initiated against the fourth and fifth applicants. They were summoned on 8 September 2016 by the Yvelines Deportation Board, which gave an opinion in favour of their expulsion. Although no decision was taken at the end of that procedure (see paragraph 18 above), it can be seen that, as aliens on French soil, the applicants may now have to face deportation. A measure of this kind would be likely to have an impact on their private life, in that it could result in a loss of employment, separation from their families and a breakdown in the social ties they have developed in France. However, as the case stands, since no deportation order has been issued, the consequence of the deprivation of nationality for the applicants’ private life is confined to the loss of an element of their identity. 50. That being so, the Court is able to accept the Government’s arguments. As it has repeatedly emphasised, terrorist violence is in itself a grave threat to human rights (see Othman (Abu Qatada), cited above, § 183; Trabelsi, cited above, § 117; Ouabour v. Belgium, no. 26417/10, § 63, 2 June 2015; and Big Brother Watch and Others v. the United Kingdom, nos. 58170/13 and 2 others, § 445, 13 September 2018). The Court therefore understands, as it has previously stated, the decision of the French authorities, following the attacks in France in 2015, to take a firmer stand against individuals who had been convicted of a serious offence constituting an act of terrorism. It also notes the Government’s position to the effect that, as a result of their actions, such individuals may no longer enjoy the specific bond conferred on them by the nationality of the country in which they reside. It has also taken note of the view of the public rapporteur before the Conseil d’État that the actions leading to their criminal convictions reveal certain allegiances which show that their attachment to France and its values is of little importance for them in the construction of their personal identity (see paragraph 15 above). It further notes that the participation in a criminal conspiracy to prepare a terrorist act, of which all five applicants were found guilty, continued for ten consecutive years (see paragraph 9 above). Some of the applicants had just acquired French nationality when they committed the offences and the others acquired it while they were in the process of committing them (see paragraphs 4-9 above). The Court also notes that the applicants all have another nationality, a fact to which it attaches some importance. The decision to deprive them of their French nationality did not therefore have the effect of rendering them stateless, which is indeed a prerequisite for the application of Article 25 of the Civil Code. Moreover, as the Court has already noted and as the applicants’ situation illustrates, the loss of French nationality does not automatically entail deportation and if such a decision came to be taken in their cases, remedies would be available to them through which they could assert their rights. 51. In the light of the foregoing, the Court finds that the decision to deprive the applicants of their French nationality did not have any disproportionate consequences for their private life. 52. Accordingly, there has been no violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 53. The applicants argued that the deprivation of their French nationality was a “disguised punishment”, being tantamount to a sanction aimed at penalising the same conduct as that for which they had been convicted in 2007 by the Paris Criminal Court. They relied on Article 4 of Protocol No. 7, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” The parties’ submissions (a) The Government 54. The Government primarily argued that this complaint was inadmissible. 55. They began by pointing out the reservation made by France under Article 4 of Protocol No. 7, to the effect that “only those offences which under French law fall within the jurisdiction of the French criminal courts may be regarded as offences within the meaning of [Article 4] of this Protocol”. They acknowledged that this reservation did not contain a brief statement of the law or laws that might be incompatible with the provision in question, but submitted that the phrase “criminal courts” delimited its scope with sufficient precision, such that it could not be set aside. They pointed out that, under French law, deprivation of nationality by ministerial order was not a matter for the criminal courts but for the Conseil d’État. 56. The Government further submitted that such a measure was not a criminal sanction and that the complaint was therefore incompatible ratione materiae with the provisions of the Convention. 57. They pointed out in that connection that the European Commission of Human Rights had held, in its decision in Saladhin Gaip v. Greece (no. 17309/90, 30 August 1994), that proceedings relating to deprivation of nationality before the administrative courts in that country did not concern a criminal charge within the meaning of Article 6 of the Convention. 58. They stressed that the so-called Engel criteria should be applied to determine whether proceedings could be characterised as criminal within the meaning of Article 4 of Protocol No. 7. In their view, those criteria would lead to the conclusion that this was not the case for the proceedings at issue, since the deprivation of nationality provided for in Article 25 of the Civil Code was an administrative sanction under French law and its essential purpose was not to punish or deter but to terminate the special bond between the person concerned and the country which had conferred its nationality thereon, given the particularly serious nature of the offences, which could be regarded as incompatible with the requirement of loyalty to France. On that last point, the Government observed that the Criminal Court could not impose a measure of deprivation of nationality by way of addition to a criminal sentence. They added that, although it was a sanction with a certain degree of severity, it was not disproportionate in view of: the particular seriousness of the conduct referred to in Article 25 of the Civil Code, the fact that it could not be decided against a person who would be rendered stateless as a result, the fact that it did not in itself entail deportation, and the fact that the resulting loss of civic rights and of the right to join the French civil service were penalties that could ordinarily stem from convictions for offences such as those of which the applicants had been found guilty. In addition, the Constitutional Council had twice validated the constitutionality of the measure of deprivation of nationality (decisions of 6 July 1996, no. 96-377 DC, and 23 January 2015, no. 2015-439 QPC). (b) The applicants 59. The applicants asked the Court to declare the application admissible. 60. They began by observing that France’s reservation had been strongly criticised in literature and that, in the circumstances of the present case, it would be tantamount to rendering Article 4 of Protocol No. 7 devoid of substance. 61. They pointed out that the concept of offence, within the meaning of Article 4 of Protocol No. 7 extended beyond the criminal domain. Referring to the judgment in Sergueï Zolotukhin v. Russia ([GC], no. 14939/03, ECHR 2009), they stated that there was no doubt that the measure taken against them was an administrative sanction which supplemented the criminal conviction and sentence handed down against them in 2007 in respect of the same offences. Since the measure was irrevocable and could entail deportation to countries with which they had no links, deprivation of nationality could be perceived as a more serious sanction than the sentence itself. 62. In their view, the deprivation of nationality was undoubtedly punitive in nature when it was ordered in circumstances such as those of their case, as it was a sanction for a presumed lack of loyalty and resulted in the loss of a number of rights. The Court’s assessment 63. The Court does not find it necessary to examine the question concerning the application of France’s reservation in respect of Article 4 of Protocol No. 7, in so far as the complaint is inadmissible for another reason (see, for example, Durand v. France (dec.), no. 10212/07, § 54, 31 January 2012). 64. For that complaint is, in any event, incompatible ratione materiae with the provisions of the Convention. 65. In order for Article 4 of Protocol No. 7 to be applicable, it is necessary in particular for the applicant to have been tried or “punished in criminal proceedings” for an offence for which he has already been finally acquitted or convicted. 66. In the present case, there is no doubt that, after being found guilty by the criminal courts for the offence of participation in a criminal conspiracy to commit a terrorist act, the applicants had indeed been “convicted” within the meaning of Article 4 of Protocol No. 7. Moreover, their conviction in 2007 had already become final when they were deprived of French nationality in 2015. 67. The question thus arising, as to the applicability of Article 4 of Protocol No. 7, is whether, by the effect of this deprivation of French nationality, pursuant to Article 25 of the Civil Code, the applicants may be regarded as having been “punished in criminal proceedings” within the meaning of Article 4 of Protocol No. 7. 68. In this connection the Court clarified, in the case of A and B v. Norway ([GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016) that, in order to determine whether proceedings are “criminal” for the purposes of Article 4 of Protocol No. 7, it is necessary to apply the so-called Engel criteria in respect of the concept of a “criminal charge”, within the meaning of Article 6 § 1 of the Convention (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The criteria are as follows: (1) the legal classification of the measure under national law, (2) the very nature of the measure, and (3) the nature and degree of severity of the “penalty” (see, among other authorities, Kapetanios and Others v. Greece, nos. 3453/12 and 2 others, § 52, 30 April 2015, and Escoubet v. Belgium [GC], no. 26780/95, § 32, ECHR 1999 ‑ VII). The second and third criteria are alternative, not cumulative, but this does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, for example, Kapetanios and Others, cited above, § 52). 69. The Court will therefore ascertain whether the decision to deprive a person of nationality under Article 25 of the Civil Code is classified as a criminal measure under French law; it will also examine the very nature of this measure together with the nature and degree of severity of the “penalty”. 70. It would first observe that deprivation of nationality under Article 25 of the Civil Code is not a “criminal” measure in French law. It is not provided for in the Criminal Code but in the Civil Code and does not fall under the jurisdiction of the criminal courts but that of the administrative authorities and courts; the Conseil d’État indeed clarified in the present case that it was an “administrative sanction”. 71. Secondly, as to the “very nature” of this measure, the Court is of the view, as argued by the Government, that going beyond its punitive connotation, deprivation of nationality under Article 25 of the Civil Code has a specific objective in that it gives effect to the fact that an individual who has benefited from acquisition of French nationality has subsequently severed the bond of loyalty to France by committing particularly serious acts which, in the case of terrorism, undermine the very foundation of democracy. Its primary purpose is thus to serve as a solemn acknowledgment of this severance of their bond with France. 72. Thirdly, as to the degree of severity of the measure in question, the Court does not underestimate either the serious nature of the message that the State thereby addresses to those concerned – a seriousness that is clearly reflected in the term “ déchéance ” (the fact of being deprived or stripped of a status) – or the impact that it may have on their identity. Its degree of severity must, however, be unreservedly put into perspective, having regard to the fact that deprivation of nationality under Article 25 of the Civil Code is directed against conduct which, in the case of terrorist acts, undermines the very foundation of democracy. The Court would further point out that this measure does not in itself result in the deportation from France of those concerned (see paragraphs 42 and 50 above). Lastly, referring to paragraph 71 above, it notes that it is not a sanction that can be regarded as criminal in nature. 73. It can be seen from the foregoing that deprivation of nationality, as prescribed by Article 25 of the Civil Code, is not a punishment in criminal proceedings, within the meaning of Article 4 of Protocol No. 7. That provision is therefore inapplicable in the present case. 74. This part of the application must therefore be declared inadmissible as incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 thereof. | The Court held that there had been no violation of Article 8 of the Convention, finding that the decision to deprive the applicants of French nationality had not had disproportionate consequences for their private life. It reiterated in particular the point, already made in a number of judgments, that terrorist violence constituted in itself a serious threat to human rights. As the applicants already had another nationality, the decision to deprive them of French nationality had not had the effect of making them stateless. In addition, loss of French nationality did not automatically entail deportation from France, but if such a measure were to be decided against them they would have the appropriate remedies by which to assert their rights. The Court further observed that deprivation of nationality under Article 25 of the French Civil Code was not a criminal sanction, within the meaning of Article 4 of Protocol No. 7 (right not to be tried or punished twice) of the Convention, and that this provision was therefore inapplicable. |
386 | Strip searches | RELEVANT LEGAL FRAMEWORK AND PRACTICE the bavarian execution of sentences act 30. Section 91 of the Bavarian Execution of Sentences Act, concerning searches, provides in so far as relevant as follows: “(1) It shall be permissible to search prisoners, their belongings and the cells. Searches of male prisoners may only be carried out by men, and searches of female prisoners only by women; this shall not apply to searches of prisoners by technical means or other devices. The need to protect prisoners’ sense of modesty shall be duly taken into account. (2) Body searches involving the removal of clothing shall be permitted only in the event of an imminent threat or on an order by the prison governor in the individual case. When male prisoners are being searched, only men shall be present; when female prisoners are being searched, only women shall be present. Searches shall be carried out in a closed room without any other prisoners present. (3) The prison governor may issue a general order to the effect that prisoners must be searched in accordance with subsection (2) on admission to the prison, after contacts with visitors and following any absence from the prison. ...” provisions and practice governing official liability proceedings 31. Under Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed intentionally or negligently by a public servant. 32. Damages for breaches of official duty are afforded to the individual concerned in accordance with Articles 249 et seq. of the Civil Code. Under Article 253 § 1 of the Civil Code, compensation for non-pecuniary damage can be awarded only if it is provided for by law. 33. According to the established case-law of the Federal Court of Justice, a claim for non-pecuniary damage can arise in the event of a violation of an individual’s personality rights under Articles 1 and 2 § 1 of the Basic Law. However, a claim for monetary compensation for a breach of these rights exists only where there has been a sufficiently serious interference with these rights which could not be compensated for in another manner. In this assessment, the reason why the State actor took the impugned measure and his or her motives, as well as the degree of fault, have to be taken into account (see, inter alia, Federal Court of Justice, no. III ZR 9/03, judgment of 23 October 2003, Neue Juristische Wochenschrift (NJW) 2003, pp. 3693 et seq., and no. III ZR 361/03, judgment of 4 November 2004, NJW 2005, pp. 58-60 with further references; see also Federal Constitutional Court, file no. 1 BvR 2853/08, decision of 11 November 2009, § 21, and file no. 1 BvR 2639/15, decision of 14 February 2017, § 15 with further references). 34. While the Federal Constitutional Court considered this restriction on the right to claim damages following a breach of an individual’s personality rights to be compatible in principle with the Basic Law, it stressed that the reasoning of the domestic courts in finding that no monetary compensation was necessary had to give due weight to the personality rights enshrined in the Basic Law (see Federal Constitutional Court, no. 1 BvR 2853/08, cited above, §§ 19-20, and file no. 1 BvR 2639/15, cited above, §§ 14-16 with further references). provisions AND PRACTICE goverNing legal representation and legal aid 35. Pursuant to Article 78 § 1 of the Code of Civil Procedure, representation by counsel is compulsory for parties to civil proceedings before the Regional Court, the Court of Appeal and the Federal Court of Justice. Under Article 78 § 3 of that Code, these rules are not to be applied to procedural acts that may be carried out before the records clerk of the court registry. A request for legal aid is such an act which can be carried out before the records clerk (see Article 117 § 1 of the Code of Civil Procedure). 36. Article 114 of the Code of Civil Procedure lays down the conditions for a party to civil proceedings to be granted legal aid. It provides as follows: “(1) Any party who, in view of his or her personal and economic situation, is unable to afford the costs of conducting the proceedings or is able to afford them only in part or as instalments shall be granted legal aid upon application, provided that the legal action he or she intends to bring ... has sufficient prospects of success and does not appear vexatious. ...” 37. Where a party has been granted legal aid, a lawyer of the party’s choice who is prepared to represent him or her is officially appointed if representation by counsel is compulsory in the proceedings (Article 121 § 1 of the Code of Civil Procedure). 38. The court with jurisdiction to deal with the intended legal action has jurisdiction to decide on applications for legal aid; there is no oral hearing in legal aid proceedings (Article 127 § 1 of the Code of Civil Procedure). As a rule, an appeal lies against any decision refusing legal aid (Article 127 § 2 of the Code of Civil Procedure). 39. Under the Federal Constitutional Court’s well-established case-law, the courts’ refusal to grant legal aid for bringing proceedings raises an issue under the constitutional right of equal access to court. It was constitutional to grant legal aid only in cases in which the legal action the claimant intended to bring had sufficient prospects of success and did not appear vexatious. However, the examination of the prospects of success in the summary legal aid proceedings may not replace the main proceedings but should only make them available (see Federal Constitutional Court, no. 2 BvR 94/88, decision of 13 March 1990, §§ 23-26, BVerfGE 81, 347 et seq. ). THE LAW I. JOINDER OF THE APPLICATIONS 40. 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). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 41. The applicant complained about the repeated strip searches he had been obliged to undergo in Straubing Prison prior to or after receiving visitors. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties’ submissions (a) The Government 42. In the Government’s submission, the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention in respect of his complaint about the strip searches as such. The applicant had merely brought proceedings before the domestic courts requesting legal aid in this regard. In the legal aid proceedings, the domestic courts had only examined in a summary manner whether the action the applicant intended to bring with the help of legal aid had sufficient prospects of success. However, the applicant had not brought the main official liability proceedings concerning a possible right to compensation in respect of the strip searches, and had thus failed to obtain a decision of the domestic courts regarding those searches. 43. In these circumstances, the Federal Constitutional Court had only had jurisdiction to examine whether the right of equal access to legal protection had been violated; this corresponded to the rights the applicant claimed under Articles 6 § 1 and 13 of the Convention. In contrast, that court had not been empowered to examine the constitutionality of the strip searches in substance. 44. In the Government’s view, the applicant could reasonably have been expected to bring the main official liability proceedings, despite the fact that representation by counsel was compulsory in those proceedings under Article 78 of the Code of Civil Procedure (see paragraph 35 above) and despite the refusal of legal aid. They noted that the applicant had previously been able to be represented by counsel in different proceedings in which he had not been granted legal aid, as well as in the impugned legal aid proceedings. 45. The Government further argued that, in any event, the applicant could no longer claim to be the victim of a violation of Article 3. The domestic authorities had granted the applicant sufficient redress for a breach of that provision by declaring the strip searches unlawful, making monetary compensation unnecessary. (b) The applicant 46. The applicant took the view that he had exhausted domestic remedies as required by Article 35 § 1 of the Convention. He submitted that, following the refusal to grant him legal aid, he had not been in a position to bring official liability proceedings claiming compensation in respect of the strip searches. Representation by a lawyer was compulsory in those proceedings and court costs had to be paid, but he did not have the means to cover those costs. The fact that his lawyer had been prepared to support him in the legal aid proceedings in view of the obvious prospects of success of the intended official liability proceedings did not change that fact. In their decisions not to grant him legal aid, the domestic courts had indirectly decided on his official liability action and rejected it. 47. The applicant further contested that he had lost his victim status in the absence of any monetary compensation for the breach of Article 3 by the repeated strip searches. 2. The Court’s assessment (a) Relevant principles concerning the exhaustion of domestic remedies 48. The Court reiterates that, whereas Article 35 § 1 of the Convention 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 decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, inter alia, Cardot v. France, 19 March 1991, § 34, Series A no. 200; Akdivar and Others v. Turkey, 16 September 1996, §§ 66 and 69, Reports of Judgments and Decisions 1996 ‑ IV; and Storck v. Germany (dec.), no. 61603/00, 26 October 2004). 49. The Court also reiterates that the requirement of exhaustion of domestic remedies is intended to provide national authorities with the opportunity of remedying violations alleged by an applicant (see, inter alia, López Ostra v. Spain, 9 December 1994, § 38, Series A no. 303 ‑ C, and Tomé Mota v. Portugal (dec.), no. 32082/96, ECHR 1999-IX). While recognising the principle that an applicant is excused from pursuing domestic remedies which are bound to fail, the Court nevertheless finds that in such cases an applicant has to show either by providing relevant court decisions or by presenting other suitable evidence that a remedy available to him would in fact have been of no avail. The Court further observes that the existence of mere doubt as to the chances of success of a domestic remedy does not exempt an applicant from the obligation to exhaust it (see, inter alia, T.A. and others v. Germany (dec.), no. 44911/98, 19 January 1999; Tomé Mota, cited above; and Storck, cited above). 50. The Court further observes that it has had to deal with the question of exhaustion of domestic remedies in a number of cases in which the applicant, having been refused legal aid due to the fact that the intended proceedings did not have reasonable prospects of success, did not pursue the main proceedings and thus did not avail him or herself of all the remedies which should, in principle, be exhausted in order to comply with Article 35 § 1 of the Convention (see, in particular, Gnahoré v. France, no. 40031/98, §§ 46-48, ECHR 2000 ‑ IX; Storck, cited above; L.L. v. France, no. 7508/02, §§ 22-23, ECHR 2006-XI; Eckardt v. Germany (dec.), no. 23947/03, 10 April 2007; Vinke v. Germany (dec.) [Committee], no. 36894/08, 12 June 2012; and Annen v. Germany, no. 3690/10, § 37, 26 November 2015). 51. In this context, the Court has repeatedly considered that an applicant could not be considered to have failed to exhaust domestic remedies by not continuing with proceedings after the decision dismissing his or her legal aid request, notably in cases in which that request had been made for the purpose of lodging an appeal on points of law (see Storck, cited above; and Annen, cited above, § 37). One relevant element for finding that the applicant was excused from pursuing main proceedings as these were bound to fail was that the same judges who found in their decision on the legal aid request that the intended proceedings had no reasonable prospects of success were competent to adjudicate on the applicant’s case in the main proceedings (see Storck, cited above, and Annen, cited above, § 37). (b) Application of these principles to the present case 52. The Court notes that the applicant in the present case, following the refusal of legal aid, did not bring official liability proceedings to determine on the merits whether he had a right to compensation in respect of the allegedly degrading strip searches. He only brought preliminary proceedings, and exhausted the available domestic remedies, in respect of his legal aid request concerning such official liability proceedings in the two sets of proceedings before the domestic courts here at issue. 53. In determining whether the applicant was excused, exceptionally, from bringing the main official liability proceedings, the Court notes that in the aforementioned two sets of legal aid proceedings, the domestic courts examined in a detailed manner whether the official liability proceedings which the applicant intended to bring were potentially well founded, before concluding that those proceedings did not have sufficient prospects of success. Having regard to the standards of domestic law (compare Article 114 § 1, first sentence, of the Code of Civil Procedure, see paragraph 36 above), this meant that the domestic courts, which also had jurisdiction to deal with the intended actions themselves, did not consider the applicant’s position to be at least arguable. 54. The Court does not overlook that the domestic courts made their findings after conducting only a preliminary examination of the intended official liability actions on the basis of the case file alone, as is usual in legal aid proceedings (see paragraph 38 above). However, it cannot but note that in the particular circumstances of the present case, the domestic courts must be considered to have determined the stance they would take in potential future official liability proceedings to an extent which no longer left any real doubts about the outcome of those proceedings. 55. The Court observes that the domestic courts had to establish whether it was at least arguable that there had been a sufficiently serious breach of the applicant’s personality rights which could not be compensated for adequately by other means than monetary compensation. In this context, the appeal courts found that there was no need to grant the applicant monetary compensation despite the fact that they recognised that the repeated unlawful strip searches of the applicant had constituted a serious interference with his personality rights, that an abuse of visiting rights by the applicant had been unlikely and that there may have been some minor fault by the prison staff who had ordered and carried out the searches in question (see, in particular, paragraphs 17 to 19 and 26 above). 56. The Court further notes that in the proceedings at issue, the domestic courts had had regard to several decisions handed down by the courts dealing with the execution of sentences in which a number of the strip searches of the applicant had been declared unlawful after main proceedings conducted before these courts. As even in these circumstances the domestic courts did not consider the applicant’s intended action at least arguable, the Court is satisfied that conducting the main official liability proceedings before the same courts would have been to no avail. 57. The Court concludes that the objection of non-exhaustion of domestic remedies raised by the Government, having regard to the specific facts of the case, must be rejected. (c) Loss of victim status 58. As for the Government’s objection that the applicant at least lost his status as a victim of a violation of Article 3, for the purposes of Article 34 of the Convention, the Court considers that the adequacy or otherwise of the authorities’ response to the impugned strip searches must be considered in the light of the severity of the treatment possibly in breach of Article 3. The issue of whether the applicant lost his victim status shall therefore be addressed under the merits of the applicant’s complaint under Article 3 (compare also Gäfgen v. Germany [GC], no. 22978/05, § 78, ECHR 2010; and Furcht v. Germany, no. 54648/09, § 34, 23 October 2014). The Court therefore joins to the merits the Government’s objection concerning the loss of victim status. (d) Conclusion 59. The Court further notes that the present complaint is neither manifestly ill-founded nor inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 1. Compatibility of the random strip searches with Article 3 (a) The parties’ submissions (i) The applicant 60. The applicant submitted that the repeated random strip searches had been clearly unnecessary in the circumstances and had served only to debase him, in breach of Article 3 of the Convention. The conduct of the procedure, in which he had had to undress at the outset and had been subjected to a search, including an inspection of his anus, by two prison guards for several minutes, had not been professional and had infringed his sense of modesty. 61. Given that he had received visits from public officials prior to or after the strip searches and that he had been separated from these officials by a glass partition, no security concerns whatsoever had been discernible, such as a risk that he might attempt to smuggle particular objects into or out of the prison, nor had such concerns been advanced by the authorities. The searches had therefore clearly been arbitrary. (ii) The Government 62. The Government conceded that the strip searches of the applicant could be considered as degrading treatment, but could not be classified as torture or inhuman treatment, for the purposes of Article 3. The random searches had been carried out in a professional manner and had not entailed any unnecessary humiliation. The applicant had not been treated differently compared to other detainees in Straubing Prison. 63. The Government stressed that strip searches could, in certain circumstances, be compatible with Article 3 in order to maintain security and order in prison. They could prevent objects such as drugs, weapons or mobile phones from being smuggled into prison or plans for flight or instructions to commit offences from being smuggled outside prison. The searches had been based on section 91 §§ 2 or 3 of the Bavarian Execution of Sentences Act. Given that prior to the Federal Constitutional Court’s decision of 5 November 2016 the domestic courts had considered the impugned practice of strip searches to be lawful, the prison staff could hardly be criticised for having had recourse to that practice prior to that decision. (b) The Court’s assessment (i) Relevant principles 64. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level 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 health of the victim. In considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose does not conclusively rule out a finding of a violation (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV; Peers v. Greece, no. 28524/95, §§ 67, 68 and 74, ECHR 2001 ‑ III; and Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001 ‑ VIII). Furthermore, the suffering and humiliation must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI; Valašinas, cited above, § 102; Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006 ‑ IX, and Wainwright v. the United Kingdom, no. 12350/04, § 41, ECHR 2006 ‑ X). 65. The Court has found that strip searches may be necessary on occasion to ensure prison security or to prevent disorder or crime (see Valašinas, cited above, § 117; Iwańczuk v. Poland, no. 25196/94, § 59, 15 November 2001; Van der Ven v. the Netherlands, no. 50901/99, § 60, ECHR 2003 ‑ II; Frérot v. France, no. 70204/01, § 38, 12 June 2007; and Dejnek v. Poland, no. 9635/13, § 60, 1 June 2017). They should be carried out in an appropriate manner with due respect for human dignity and for a legitimate purpose (see Wainwright, cited above, § 42; and Dejnek, cited above, § 60). 66. The Court further reiterates that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law ‑ enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see, among other authorities, Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 207, ECHR 2012, and Bouyid v. Belgium [GC], no. 23380/09, § 88, ECHR 2015). 67. The Court emphasises that the words “in principle” cannot be taken to mean that there might be situations in which such a finding of a violation is not called for because the above-mentioned severity threshold (see paragraph 64 above) has not been attained (see Bouyid, cited above, § 101). Any interference with human dignity strikes at the very essence of the Convention. For that reason any conduct by law-enforcement officers vis ‑ à ‑ vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention (see Bouyid, cited above, § 101, and Zherdev v. Ukraine, no. 34015/07, § 86, 27 April 2017). 68. Where the manner in which a search is carried out has debasing elements which significantly aggravate the inevitable humiliation entailed in the procedure, Article 3 has been engaged: for example, where a prisoner was obliged to strip in the presence of a female officer, and his sexual organs and food were touched with bare hands (see Valašinas, cited above, § 117), and where a search was conducted before four guards who derided and verbally abused the prisoner (see Iwańczuk, cited above, § 59). 69. Similarly, where the search has no established connection with the preservation of prison security and prevention of crime or disorder, issues may arise (see, for example, Iwańczuk, cited above, §§ 54, 56 and 58-59, where the search of the applicant, a remand prisoner who had not given grounds for security concerns, was conducted when he wished to exercise his right to vote, and Van der Ven (cited above, §§ 61-62) and Frérot (cited above, § 47), where the strip-searching was systematic and long term without convincing security needs; see also Wainwright, cited above, § 42). (ii) Application of these principles to the present case 70. The Court observes that the eleven strip searches of the applicant, which included an inspection of the anus and thus also entailed embarrassing positions, were intrusive. It is further uncontested that the repeated searches which the applicant had to undergo were random searches, which had been ordered against one in five prisoners at the relevant time without any possibility to dispense with a search in a particular case. On all occasions on which the applicant was searched, he expected visits from, or had met public officials. On ten occasions, the applicant received visits from clerks of the district court registry in order for them to take record of legal remedies of which he wished to avail himself before the courts. No concrete security concerns relating to the applicant had either been discernible or brought forward by the domestic authorities. However, the manner in which the system of random strip searches was applied did not permit to take into account the applicant’s conduct when determining whether or not a search should be carried out. The domestic courts had indeed acknowledged that an abuse of the visiting rights had been unlikely in the applicant’s case (see paragraph 17 above). 71. In these circumstances, the Court is not satisfied that the searches of the applicant had an established concrete connection with the preservation of prison security or the prevention of crime. 72. The Court finds that the manner in which the repeated searches as such were carried out did not entail any other elements unnecessarily debasing or humiliating the applicant. However, owing to the absence of a legitimate purpose for these repeated and generalised searches, the feeling of arbitrariness and the feelings of inferiority and anxiety often associated with them, as well as the feeling of a serious affront to dignity indisputably prompted by the obligation to undress in front of another person and submit to inspection of the anus, resulted in a degree of humiliation exceeding the – unavoidable and hence tolerable – level that strip-searches of prisoners inevitably involve (compare Frérot, cited above, § 47). The searches thus went beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment. The Court concludes that the impugned strip searches to which the applicant was subjected in Straubing Prison diminished his human dignity and therefore amounted to degrading treatment within the meaning of Article 3. The Government indeed appears to concede this. 2. Loss of victim status (a) The parties’ submissions (i) The Government 73. The Government considered that, in any event, the applicant had lost his status as a victim of a breach of Article 3. They argued that the Federal Constitutional Court, in its decision of 5 November 2016, had considered the impugned practice of random strip searches without the possibility to dispense with a search in a particular case as unconstitutional (see paragraph 5 above). Moreover, the domestic courts had acknowledged that three of the strip searches of the applicant at issue in the present applications – the searches of 24 August 2015, 3 December 2015 and 13 June 2016 – had been unlawful (see paragraphs 8 and 9 above). Furthermore, the impugned searches had been carried out prior to the Federal Constitutional Court’s said decision. As Straubing Prison had subsequently amended its rules on carrying out strip searches in order to comply with that court’s decision, there was no risk of repetition of the practice. Since the Federal Constitutional Court’s decision of 5 November 2016 there had been very few instances in which the domestic courts had considered strip searches in Straubing Prison to be unlawful as having been disproportionate in the circumstances. The above-mentioned court decisions and the measures taken in Straubing Prison therefore constituted sufficient redress, making monetary compensation unnecessary. (ii) The applicant 74. The applicant submitted that in view of the gravity of the breach of his fundamental rights, the mere finding by the domestic courts that the impugned strip searches had been unlawful, without any award of monetary compensation for the non-pecuniary damage caused by those searches, was clearly insufficient. The applicant stressed that Straubing Prison had not immediately changed the impugned practice of strip searches after the Federal Constitutional Court’s decision, as illustrated by the order for him to undergo a strip search on 19 January 2019 and by similar orders concerning other prisoners. (b) The Court’s assessment 75. 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” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V). 76. As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (compare, for instance, Scordino (no. 1), cited above, § 186; Gäfgen, cited above, § 116, and Bivolaru v. Romania (no. 2), no. 66580/12, § 170, 2 October 2018). 77. Under the Court’s case-law as it emerges from the cases cited above (see paragraphs 65-69), it is recognised that a breach of Article 3, a core right of the Convention, as a rule causes the person concerned non ‑ pecuniary damage which is to be compensated for by a monetary award. The Court’s awards in respect of non-pecuniary damage serve to give recognition to the fact that non-material damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 224, ECHR 2009; Al-Jedda v. the United Kingdom [GC], no. 27021/08, § 114, ECHR 2011; and Nagmetov v. Russia [GC], no. 35589/08, § 73, 30 March 2017 with further references). 78. It is only in exceptional circumstances that the Court, having regard to what is just, fair and reasonable in all the circumstances of the case, considers that the finding of a violation constitutes in itself sufficient just satisfaction and that no monetary award is made. This concerns, in particular, cases in which the violation found is considered to be of a minor nature or as relating only to procedural deficiencies (compare, for instance, Nikolova v. Bulgaria [GC], no. 31195/96, § 76 in fine, ECHR 1999 ‑ II; Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, § 136, ECHR 2013 (extracts); Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 220, ECHR 2013; and Stollenwerk v. Germany, no. 8844/12, § 49, 7 September 2017). 79. The Court observes that in the present case the domestic courts acknowledged that the strip searches of the applicant had been unlawful and conceded that the interference with the applicant’s personality rights on account of these searches had been serious (see paragraphs 17 and 26 above). The national authorities can be considered to have recognised thereby, at least in substance, a breach of Article 3. 80. However, the national authorities, when refusing to grant the applicant legal aid in order to bring official liability proceedings, considered that granting him monetary compensation for the non-pecuniary damage caused by that breach was not necessary. The Court, however, does not discern any grounds warranting the conclusion that in the applicant’s case the breach of Article 3 by the repeated strip searches is of a minor nature (see paragraph 72 above), such that compensation would be unnecessary. 81. It follows that the applicant may still claim to be the victim of a violation of Article 3 within the meaning of Article 34 of the Convention. 82. There has therefore been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 83. The Court gave notice to the Government of the applicant’s complaint about the repeated strip searches in prison also under Article 8 of the Convention. 84. However, in view of its finding that the searches were in breach of Article 3 of the Convention, the Court does not consider it necessary to examine the impugned measures under Article 8 of the Convention. Iv. ALLEGED VIOLATION OF ARTICLE 13 read in conjunction with article 3 OF THE CONVENTION 85. The applicant further complained that he had not had an effective remedy by which to obtain compensation for the damage caused by the illegal strip searches. He relied on Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 86. The Court will examine the applicant’s complaint under Article 13 read in conjunction with Article 3 of the Convention. A. Admissibility 87. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 88. The applicant argued that the domestic courts had prevented him from claiming compensation for the non-pecuniary damage suffered as a result of the manifestly illegal strip searches. 89. In the Government’s submission, the applicant had had at his disposal an effective domestic remedy in respect of his complaint under Article 3 or Article 8 of the Convention concerning the strip searches, as required by Article 13 of the Convention. He could have brought official liability proceedings claiming compensation for the damage allegedly caused by the searches. They further submitted that the applicant had been granted sufficient compensation for the breach of his personality rights, and that the additional monetary compensation sought was unnecessary. Monetary compensation for non-pecuniary damage was likewise not necessary in each case according to the case-law of this Court (they referred to Nikolova v. Bulgaria [GC], no. 31195/96, § 76, ECHR 1999 ‑ II, and Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006 in support of their view). 2. The Court’s assessment (a) Relevant principles 90. Article 13 requires the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, inter alia, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI; Ramirez Sanchez v. France [GC], no. 59450/00, § 157, ECHR 2006 ‑ IX, and A.K. v. Liechtenstein (no. 2), no. 10722/13, § 84, 18 February 2016). 91. 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 (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000 ‑ VII; Kudła, cited above, § 157, and Ramirez Sanchez, cited above, § 158). The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła, cited above, § 157; Sürmeli v. Germany [GC], no. 75529/01, § 98, ECHR 2006 ‑ VII, and Ramirez Sanchez, cited above, § 159). 92. The Court further reiterates that where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see, for instance, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107, ECHR 2001 ‑ V (extracts)). 93. In respect of arguable claims of a breach of Article 3 notably by ill ‑ treatment or poor conditions of detention, the Court has repeatedly found that there is a strong presumption that they have caused non-pecuniary damage to the aggrieved person ( Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 229, 10 January 2012). In these circumstances, making the award of compensation conditional on the claimant’s ability to prove fault on the part of the authorities and the unlawfulness of their actions may render existing remedies ineffective (see Burdov v. Russia (no. 2), no. 33509/04, § 109, ECHR 2009; Ananyev and Others, cited above, § 229, and Reshetnyak v. Russia, no. 56027/10, §§ 66-67, 8 January 2013 with further references). Furthermore, the level of compensation awarded for non-pecuniary damage must not be unreasonable in comparison with the awards made by the Court in similar cases ( Ananyev and Others, cited above, § 230). (b) Application of these principles to the present case 94. The Court has found above that the strip searches of the applicant amounted to degrading treatment in breach of Article 3 (see paragraphs 70 ‑ 72). The applicant’s complaint in this regard is therefore “arguable” for the purposes of Article 13. 95. As for the effectiveness, for the purposes of Article 13, of the official liability proceedings which the applicant attempted to bring in order to obtain compensation for the non-pecuniary damage flowing from that breach, the Court observes that in the domestic court’s view, sufficient compensation for the interference with the applicant’s personality rights had been granted by other means than monetary compensation. Despite the fact that the domestic courts had themselves classified the strip searches as a serious and unlawful interference with the applicant’s personality rights, they considered it sufficient that the courts dealing with the execution of sentences and the Federal Constitutional Court had previously found the applicant’s (or comparable) strip searches to have been unlawful. They further took into consideration that the fault on the part of the prison staff who had ordered and carried out the searches had at most been minor and that there was, in the courts’ view, no risk of future random searches of the applicant. 96. The Court refers to its case-law to the effect that making the award of compensation for measures in breach of Article 3 conditional on the claimant’s ability to prove fault on the part of the authorities and the unlawfulness of their actions may as such render existing remedies ineffective (see paragraph 93). It observes that the applicant’s official liability proceedings were found to have no prospects of success even despite the fact that the measures against him were classified as unlawful and despite the fact that there had – at least potentially – been fault on the part of the authorities. 97. Moreover, as found above (see paragraph 80), the Court does not see any reason for concluding that in the applicant’s case the breach of Article 3 by the repeated strip searches was of such a minor nature that compensation would exceptionally be unnecessary. It would add in this context that it cannot be derived from its case-law (see paragraphs 64-69 above) that the fact that the national authorities were not aware of having violated the Convention, or that the applicant would probably not be subjected again to such treatment in breach of his fundamental rights, constituted decisive grounds for not awarding compensation in respect of the non-pecuniary damage suffered as a result of a breach of a Convention right. 98. In these circumstances, the Court cannot but conclude that the applicant did not have at his disposal an effective remedy before a national authority to deal with the substance of his complaint under Article 3. There has accordingly been a violation of Article 13 read in conjunction with Article 3 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 99. The applicant complained that the domestic courts’ refusal to grant him legal aid in order to bring official liability proceedings claiming compensation for the non-material damage caused by the illegal strip searches had been arbitrary and had thus breached his right of access to court. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 100. The Court notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other ground listed in Article 35 of the Convention. It must therefore be declared admissible. 101. The Court found above that although the applicant had been refused legal aid in order to bring official liability proceedings for compensation for the damage caused by the repeated strip searches, he had exhausted domestic remedies in respect of his substantive complaint about these searches. The Court further examined the compliance of these searches with Article 3 alone and read in conjunction with Article 13 and found a violation of those rights, in particular, because the applicant was refused monetary compensation following these strip searches. In these circumstances, the Court does not consider it necessary to examine the applicant’s complaint under Article 6 § 1 of the Convention. vi. APPLICATION OF ARTICLE 41 OF THE CONVENTION 102. 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 103. The applicant claimed a total of EUR 12,000 in respect of non ‑ pecuniary damage. He argued that he had been unable to obtain compensation before the domestic courts as a result of their refusal to grant him legal aid. 104. In the Government’s submission, the applicant’s Convention rights had not been breached and he did not therefore have any claim to compensation. However, if the applications were held to be admissible and well-founded, the Government would not contest the amount of compensation as such claimed by the applicant. 105. The Court observes that it has found a violation of the applicant’s rights under Article 3 alone and read in conjunction with Article 13 of the Convention in respect of both sets of impugned proceedings before the domestic courts. Making its assessment on an equitable basis, it awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 106. Submitting documentary evidence, the applicant also claimed EUR 770.53 (including value-added tax (VAT)) for the lawyers’ costs incurred before the domestic courts in the legal aid proceedings. 107. The Government did not contest the amount of costs and expenses as such claimed by the applicant. 108. 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, the above criteria and the fact that it found a breach of the applicant’s Convention rights under Article 3 alone and read in conjunction with Article 13 of the Convention regarding the impugned legal aid proceedings, the Court awards the applicant the sum of EUR 770.53 (including VAT) claimed for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant. C. Default interest 109. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the searches had gone beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment, and that they had therefore diminished the applicant’s human dignity and had amounted to degrading treatment. It noted in particular that the manner in which the repeated searches had been carried out had not entailed any other elements unnecessarily debasing or humiliating the applicant. However, owing to the absence of a legitimate purpose for these repeated and generalised searches, the feeling of arbitrariness and the feelings of inferiority and anxiety often associated with them, as well as the feeling of a serious affront to dignity indisputably prompted by the obligation to undress in front of another person and submit to inspection of the anus, had resulted in a degree of humiliation exceeding the, unavoidable and hence tolerable, level that strip-searches of prisoners inevitably involve. The Court also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention, finding that there had been no effective remedy before a national authority to deal with the substance of the applicant’s complaint under Article 3. |
714 | Right to form, to join or not join a trade union | RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW 29. The relevant parts of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) provide as follows: Article 29 “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” Article 43 “Everyone shall be guaranteed the right to associate freely for the protection of their interests or promotion of social, economic, political, national, cultural and other convictions or goals. For this purpose, anyone may freely form trade unions and other associations, join them or leave them, in accordance with the law. The right to associate freely is limited by the prohibition of any violent threat to the democratic constitutional order and the independence, unity, and territorial integrity of the Republic of Croatia.” 30. The relevant provision of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, with further amendments), as in force at the relevant time, read as follows: Violation of the Freedom of Association Article 109 “Whoever denies or limits citizens’ freedom of association in ... trade unions ... shall be punished by a fine or imprisonment for [a period of] not more than one year.” 31. At the material time, the Labour Act ( Zakon о radu, Official Gazette no. 137/2004 – consolidated text, with further amendment) provided the following: Judicial protection of employment rights Section 133 “(1) Worker who considers that the employer has breached some of his or her employment rights can ... request from the employer to fulfil that right. (2) If the employer ... fails to comply with that request, the worker can, within a period of fifteen days, seek a judicial protection of the breached right before the competent court. ...” XIX TRADE UNIONS AND EMPLOYERS’ ASSOCIATIONS GENERAL PROVISIONS ON ASSOCIATIONS Right to associate Section 167 “(1) Workers have the right, without [there being] any distinction whatsoever, and according to their own free choice, to form and join a trade union, subject to only such requirements which may be prescribed by the statute or internal rules of the trade union. ... (3) The associations referred to in subsection 1 ... of this section (hereinafter, ‘the Associations’) may be formed without any prior approval.” Free membership in the association Section 168 “(1) Workers and employers respectively may freely decide on joining or leaving an association. (2) No one shall be discriminated against on the grounds of his or her membership or non-membership of an association, or participation or non-participation in its activities.” Statute of the association Section 174 “(1) An association or a higher-level association must have a statute of the association based on and adopted in accordance with the principles of democratic representation and the democratic exercise of will of its members. (2) The statute of the association regulates its: purpose; name; seal; scope of activity; logo; bodies; method by which members of these bodies are elected and recalled; powers given to the bodies; procedure for accepting and terminating membership; methods for adopting and amending the statute, internal rules and other regulations; [and] termination of operations. ...” Judicial protection of membership rights Section 186 “Any member of the association may seek judicial protection in the event of a breach of his or her rights guaranteed by the statute of the association or other internal rules.” Judicial protection of the right to associate Section 187 “(1) An association or a higher-level association may ask a court to prohibit actions breaching the right of workers and employers to associate. (2) An association or a higher-level association may claim compensation for damage suffered as a result of the activities referred to in subsection 1 of this section.” 32. The relevant provisions of the Statute of the Croatian Customs Officers’ Trade Union ( Statut Carinskog sindikata Hrvatske, 18 February 2006, hereinafter, “the Statute”) read as follows: Section 1 “The Croatian Customs Officers’ Trade Union (hereinafter, ‘the trade union’) is a voluntary and independent association of customs officers and clerks employed by the Customs Administration of the Ministry of Finance. The trade union is an independent, autonomous, voluntary and non-partisan association interested [in the protection of the interests of its members]. The trade union operates on the principles of democratic representation and the presentation of the will of its members, [and is] organised into branches and commissions.” Section 3 “The trade union is a legal entity [which is] independent of an employer and its associations in the promotion of the rights and interests of its members ...” Section 10 “Persons employed by the Customs Administration of the Ministry of Finance may become members of the trade union, and they [must] seek membership on a voluntary basis ... One becomes a member of the trade union upon accepting the Statute and signing the membership application form, and [upon] paying the prescribed membership fee for the month when [he or she] joins the trade union. Two copies of the application form shall be filled in and signed and personally submitted to the representative or deputy representative of the trade union ... The representative and deputy representative are responsible for how the admission procedure is conducted. ...” Section 15 “The key entity within the trade union’s structure is the local branch of the trade union. ... In their operation, the local branches of the union are independent; they have their own bank accounts and operate in accordance with the Statute and their internal regulations. ...” Section 16 “Bodies of the trade union, within its branches, are: the Assembly, [the executive] Commission, Representative Board and the Supervisory Board. The Assembly is the highest body of a branch and consists of all members of the branch or their chosen representatives. The Assembly elects the Commission, the Representative, the Supervisory Board and the treasurer. ... The trade union representative is the person who represents the Commission and the branch of the trade union. He or she is also member of the Presidency of the trade union. ...” Section 36 “The main source of income of the trade union, for financing its activities, is membership fees. ... The trade union is a legal entity which has its own bank account. The trade union may have other lawful sources of income.” 33. The relevant parts of the Regulations of the Šibenik branch of the Croatian Customs Officers’ Trade Union (adopted on 14 October 2000, hereinafter “the Regulations”) provide: Section 1 “The [Šibenik] branch [of the CSH] is a legal entity which operates within the structure of the trade union (CSH) ...” Section 2 “The central form of trade union activity within the Customs Administration of the Ministry of Finance is the local branch, whose members act [collectively] in the protection of their interests. The creation of [a local branch] is based on a voluntary expression of will by the employees, who become members by signing the membership application form. ...” Section 10 “The [trade union] branch representative has the following rights and obligations: - representing the branch - organising and coordinating the work of the branch commission - preparing, convoking and presiding over meetings of the branch and the Commission - representing the branch and participating in the trade union Presidency ... ... - representing each branch member whose rights are violated - supporting the dignity and interests of the profession - providing assistance by providing legal aid and protecting members ... - proposing and forming committees, panels and workgroups for individual issues - informing members on the proposals, conclusions and decisions of the Commission of the branch, and implementing the conclusions and decisions of the Presidency of the trade union ... - performing all other tasks and implementing decisions of the branch commission ...” Section 17 “Membership fees are the main source of income for financing the branch’s activities, but income may be procured from other sources. A decision to receive funds from other sources must be adopted by the Presidency of the trade union. ...” Section 22 “The interpretation of these Regulations is within the powers of the Presidency of the trade union.” RELEVANT INTERNATIONAL MATERIALSInternational Labour Organization (ILO) International Labour Organization (ILO) International Labour Organization (ILO) 34. The relevant provisions of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise (1948), ratified by Croatia, read as follows: 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 3 “1. ... [E]mployers’ organisations shall have the right ... to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.” 35. The relevant parts of ILO Convention No. 135 on Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking (1971), ratified by Croatia, provide as follows: Article 1 “Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.” Article 3 “For the purpose of this Convention the term workers’ representatives means persons who are recognised as such under national law or practice, whether they are-- (a) trade union representatives, namely, representatives designated or elected by trade unions or by members of such unions; ...” 36. The relevant parts of ILO Convention No. 151 on Protection of the Right to Organise and Procedures for Determining Conditions of Employment in the Public Service (1978), not ratified by Croatia, provide: Article 1 “1. This Convention applies to all persons employed by public authorities, to the extent that more favourable provisions in other international labour Conventions are not applicable to them. ...” Article 5 “1. Public employees’ organisations shall enjoy complete independence from public authorities. 2. Public employees’ organisations shall enjoy adequate protection against any acts of interference by a public authority in their establishment, functioning or administration.” Article 9 “Public employees shall have, as other workers, the civil and political rights which are essential for the normal exercise of freedom of association, subject only to the obligations arising from their status and the nature of their functions.” 37. The ILO Committee on Freedom of Association, set up to examine complaints of violations of freedom of association, has held that the determination of conditions of eligibility for membership in a union is a matter that should be left to the discretion of the union by-laws and the public authorities should refrain from any intervention which might impair the exercise of this right. Moreover, workers and their organisations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf. The Committee has also held that the right of workers’ organisations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to promote effectively the interests of their members. The public authorities refrain from any intervention which might impair the exercise of this right (Compilation of decisions of the Committee on Freedom of Association, 2018, paragraphs 586, 589 and 606, available at www.ilo.org ). 38. Furthermore, the Committee has held that although holders of trade union office do not, by virtue of their position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered legitimate trade union activities. Moreover, the Committee has stressed that the criminal prosecution and conviction to imprisonment of trade union leaders by reason of their trade union activities are not conducive to a harmonious and stable industrial relations climate. In addition, allegations of criminal conduct should not be used to harass trade unionists by reason of their union activities (Ibid., paragraphs 79-80 and 155). The Council of Europe 39. Article 5 of the European Social Charter 1961 (ETS No.035) 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. ...” 40. For a summary of the European Committee of Social Rights’ conclusions on the United Kingdom legal system in relation to the right of a trade union to determine its conditions for membership, see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, §§ 23-24, 27 February 2007. Other relevant materials 41. Other relevant instruments on the rights of trade unions are set out in Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 40-41, ECHR 2008. EUROPEAN UNION LAW 42. The relevant part of Article 12(1) of the Charter of Fundamental Rights of the European Union provides as follows: “Everyone has the right ... to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.” THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 43. The applicant complained about his criminal conviction for refusing to admit new members to the Šibenik branch of the CSH whilst acting in his capacity as a trade union representative. He relied on Article 11 of the Convention, which reads as follows: “1. Everyone has the right ... 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 44. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments (a) The applicant 45. The applicant submitted that he had refused the membership applications of the fifteen would-be members only because he had wanted to protect the interests of the existing members of the Šibenik branch of the CSH. He had considered that the interests of the would-be members conflicted with the interests of the existing members. Thus, in his view, D.C. had acted in breach of the relevant regulations and interests of the Šibenik branch of the CSH in accepting the fifteen membership applications. According to the applicant, as the trade union representative, processing the applications of new members had been solely within his authority. Moreover, the applicant contended that there had been a conflict of interest as regards D.C., as he (the applicant) had been his opponent in the elections for the CSH president. 46. The applicant further pointed out that two principles formed the pillars of the CSH’s functioning: independence from the employer and the protection of members’ interests. Pursuant to section 10 of the Regulations, it had been his duty to represent the trade union and protect the interests of its members. This had also been the case in relation to the extension of its membership, something which could not be based solely on objective grounds, such as the signing of an application form, but had depended on an assessment of whether the extension of the membership was in accordance with the interests of the existing members. At the relevant time, his opinion and that of the existing members of the union had been that membership should not be extended until an upcoming Assembly was held. By that decision, they had wanted to prevent changes to the governing structures of the union before the Assembly was held. 47. The applicant contended that his conviction and sentence for refusing the admission of the fifteen would-be members had been arbitrary and excessive. In his view, the domestic authorities had arbitrarily accepted that the would-be members’ interests trumped his interests and those of the existing members of the union in governing the union activities as they saw fit. He argued that if somebody had been dissatisfied with his work and decisions, he or she could have sought protection before the civil courts under the Labour Act, without resorting to repression by means of criminal law. 48. In this connection, the applicant also argued that Article 109 of the Criminal Code had been inapplicable in his case, as it concerned only those who had the power to deny or limit citizens’ freedom of association. He had had no such powers, as there had been another trade union operating within the Šibenik Customs Office which the employees could have joined. Lastly, the applicant argued that the domestic courts had failed to establish all the circumstances of the case, as they had failed to hear the witnesses he had proposed during the proceedings. (b) The Government 49. The Government argued that while they fully accepted the right of trade unions to manage their own affairs, including their membership, the applicant in this case, as a trade union representative, had refused to admit fifteen persons to the trade union, acting contrary to the relevant law. In the Government’s view, no provision of the Statute had allowed the applicant not to accept new members to the union who fulfilled the objective criteria under section 10 of the Statute, namely they were employed in the Customs Administration and had accepted the Statute, signed the membership application form and paid the membership fee. They pointed out that this interpretation of the Statute had also been confirmed by D.C. when he had been heard as a witness during the criminal investigation against the applicant. 50. The Government further stressed that it was the applicant’s arbitrary conduct in refusing to admit new members to the trade union that had led to the lodging of a criminal complaint against him and his conviction in the criminal proceedings. They pointed out that the relevant domestic courts had also found that the applicant had acted contrary to the Constitution, the relevant law and the Statute. Thus, by convicting the applicant for acting contrary to the relevant law, the domestic courts had not interfered with the functioning of the trade union or with the applicant’s lawful activities as the union’s representative. On the contrary, the domestic courts had protected the interests of the would-be members from the applicant’s unlawful conduct. 51. Lastly, the Government submitted that all the relevant facts in the proceedings had been properly established and that the decisions of the domestic courts refusing to hear further witnesses proposed by the applicant had not been arbitrary or unreasonable. The Court’s assessment (a) General principles 52. The Court refers to the general principles on trade union freedom set out in Demir and Baykara, cited above, §§ 109-11 and 119, and Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, §§ 130-135, ECHR 2013 (extracts). 53. Through its case-law, the Court has built up a non-exhaustive list of the constituent elements of trade union freedom, including the right of trade unions to draw up their own rules and administer their own affairs, including membership. The relevant principles in this context are set out in Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, §§ 37-46. (b) Application of these principles to the present case (i) Existence of an interference 54. The applicant was convicted, in his capacity as trade union representative, of refusing to admit fifteen would-be members to the Šibenik branch of the CSH. While the question of whether the applicant acted in accordance with the relevant union rules and the Statute are at the centre of the dispute in the present case (see paragraph 66 below), the Court notes that, at the relevant time, the applicant was the lawfully appointed trade union representative whose tasks included taking actions to represent the union and protect the interests of its members (see paragraphs 5, 32 and 33 above, section 10 of the Statute and section 10 of the Regulations; see also paragraph 40 above). In this connection, it is noted that the domestic law – in particular sections 186 and 187 of the Labour Act (see paragraph 31 above) – provided for the possibility that other members of the union and/or the central office of the CSH could seek judicial protection of their membership rights and right to associate in general. However, no such proceedings were instituted against the applicant within the existing structures of the union following his notifying all those concerned of the decision not to enlarge the membership of the Šibenik branch at the relevant time (see paragraph 8 above). 55. In these circumstances, having regard to the fact that Article 11 protects the right of trade unions – as associations formed by people – to control their membership (see Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 39), the Court considers that the applicant’s criminal conviction for not admitting new members to the union at the relevant time whilst acting as the trade union representative amounted to an interference with Article 11 of the Convention. (ii) Whether the interference was prescribed by law 56. Although the applicant challenged the applicability of Article 109 of the Criminal Code in his particular case (see paragraph 48 above), regard being had to the fact that it is primarily for the national courts to interpret and apply domestic law (see, for instance, Tsonev v. Bulgaria, no. 45963/99, § 45, 13 April 2006), the Court is prepared to accept that the interference in question was prescribed by law. In so far as the applicant challenges the domestic courts’ assessment of the relevant facts and the quality of their reasoning, these issues fall to be examined in the context of the question of whether or not the impugned interference was necessary in a democratic society. (iii) Whether the interference pursued a legitimate aim 57. The Court notes that the applicant was convicted for violating the freedom of association, which is a value protected by the Criminal Code (see paragraph 30 above). His conviction could therefore be seen as aimed at the prevention of crime. However, having regard to the Government’s arguments (see paragraph 50 above), the Court will proceed under the assumption that the impugned interference had the aim of protecting the rights and freedoms of others, namely the fifteen would-be members, to exercise their right of association without undue hindrance. The crucial question is, as noted above, whether this interference was necessary in a democratic society. (iv) Whether the interference was “necessary in a democratic society” (α) General principles 58. The question that arises in the present case concerns the extent to which the State could intervene to protect the would-be trade union members from the hindrance of their right to associate, taking into account the applicant’s rights and those of the trade union which he at the relevant time represented to control their membership by deciding with whom they wanted to associate. 59. The Court reiterates that the substance of the right of association enshrined in 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. These two principles are not contradictory but are correlated. This correlation implies that the Contracting State in question, while in principle being free to decide what measures it wishes to take in order to ensure compliance with Article 11, is under an obligation to take account of the elements regarded as essential by the Court’s case-law (see Demir and Baykara, cited above, § 144). 60. In this connection, the Court notes that whereas in some instances various Article 11 rights may deserve equal protection (see, for instance, Sindicatul “Păstorul cel Bun”, cited above, § 160), the right to join a union “for the protection of [one’s] interests” cannot be interpreted as conferring a general right to join the union of one’s choice, irrespective of the right of the union in question to decide on its membership in accordance with the union rules (see Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 39). Indeed, Article 11 cannot be construed as permitting every kind of compulsion in the field of trade union membership, as that would strike at the very substance of the freedom it is designed to guarantee (see Young, James and Webster v. the United Kingdom, 13 August 1981, § 52, Series A no. 44). Moreover, it would strike at the very essence of Article 11 to exert pressure on a person in order to compel him or her to join, or be in an association with, those who do not share his or her views (ibid, § 57, mutatis mutandis ). All this, of course, holds true where the association or trade union is a private body independent of the State and is not, for example, operating a closed shop agreement, in which case other considerations may apply (see Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 40). 61. In any event, as explained in Associated Society of Locomotive Engineers and Firemen (ASLEF) (§ 43), a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Thus, the State must protect the individual against any abuse of a dominant position by trade unions. In the cited case, with reference to the Commission’s earlier case-law (see Cheall v. the United Kingdom, no. 10550/83, Comm. Dec. 13.5.85, D.R. 42, and Johanssen v. Norway, no. 13537/88, Comm. Dec. 7.5.90), the Court has identified that such abuse might occur, for example, where exclusion or expulsion from a trade union is not in accordance with union rules, or where the rules are wholly unreasonable or arbitrary, or where the consequences of exclusion or expulsion result in exceptional hardship. It would add to this that a form of abuse might also occur in the event of discriminatory treatment, against which the State is required to take the real and effective measures of protection (see, mutatis mutandis, Danilenkov and Others v. Russia, no. 67336/01, § 124, ECHR 2009 (extracts)). 62. Lastly, the Court reiterates that when it carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, for instance, Zhdanov and Others v. Russia, nos. 12200/08 and 2 others, § 141, 16 July 2019, with further references). (β) Application of those principles 63. At the outset, the Court notes that the trade union in question in the present case, within which the applicant held the position of trade union representative at the relevant time, operates as an independent and autonomous trade union designed to protect the employment rights and interests of customs officers. It has no public powers and its membership is purely on a voluntary basis. Its major source of income is membership fees, and it receives no direct financial support from the State or other public funds. Moreover, it is not the only trade union representing customs officers, and there is no closed shop agreement in this area (see paragraphs 6, 16-17 and 32-33 above). The particular branch of the union in Šibenik which the applicant represented was a relatively small organisation apparently comprising some thirty members at the relevant time (see paragraph 17 above). 64. As there was no closed shop agreement, it is not apparent that the fifteen would-be members suffered, or were liable to suffer, any particular detriment or hardship in terms of their livelihood or their conditions of employment owing to their inability to join the applicant’s trade union at the relevant time. Given that that they were free to join the other existing trade union and/or establish their own or to protect their rights through legal proceedings concerning the conditions of their employment, there is nothing to suggest that they were at any individual risk of, or unprotected from, possible adverse actions by the employer (compare Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 50; and see paragraphs 31 and 61 above). 65. Moreover, there is no indication that the fifteen would-be members were subject to discriminatory treatment by the applicant acting as the trade union representative. The Court also notes that in the present case no issue arises as regards the rules and Statute of the union itself. It has not been alleged that those rules or the Statute are wholly unreasonable or arbitrary (see paragraph 61 above). 66. Rather, a dispute arises over the question whether the applicant acted in an abusive and unreasonable manner in breach of the union rules when refusing to admit the fifteen would-be members (see paragraphs 61 above; and Associated Society of Locomotive Engineers and Firemen (ASLEF), cited above, § 52). In particular, the central tenet of the Government’s argument is that the applicant acted contrary to the Statute of the CSH in refusing to admit the fifteen would-be members to the union (see paragraphs 49-50 above). 67. In this connection, the Court reiterates, as it has stated on many occasions, that it is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. As a general rule, 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 it is for the latter to establish the facts on the basis of the evidence before them (see, for instance, Barseghyan v. Armenia, no. 17804/09, § 39, 21 September 2021, with further references). For its part, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in the Convention and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see paragraph 62 above). 68. In the present case, it would appear that there was no authoritative guidance on how to interpret the trade union internal rules on the admission of new members as provided for in its internal regulations (see paragraph 33 above; section 22 of the Regulations). At the same time, the domestic courts’ reasoning was very succinct and did not elaborate on the considerations related to the applicant’s compliance with the relevant rules and the Statute, seeing in light of the relevant domestic law and the requirements of Article 11 of the Convention (see paragraphs 59-61 above). 69. In particular, on the one hand, it is true that the Statute provided no specific requirements for the admission of new members to the union, and that the applicant was eventually, albeit after the change in the membership of the union, removed from his position of trade union representative by a great majority of vote of the members (see paragraph 10 above). However, on the other hand, it is also true that that there was nothing to suggest that at the relevant time the applicant did not represent the interests of the union or other members of the Šibenik branch of the union, who did not institute any action against the applicant under the domestic law (see paragraph 31 above) after he had informed them of the refusal to admit the would-be members (see paragraph 8 above). Indeed, according to the internal union regulations and the Statute, the applicant’s position of trade union representative included taking actions to represent the union and to protect the interests of its members (see paragraph 54 above). 70. Moreover, it is noted that there were established procedures allowing the would-be members eventually to join the CSH as well, and the applicant’s actions, according to him, were intended not to deny their admission as such but to delay the decision on the extension of the membership until an upcoming ordinary annual assembly of the union (see paragraph 46 above). In this connection, it has not been suggested that the applicant had institutional or other power to decide for the assembly whether the membership would be extended or not or to prevent the admission of new members contrary to the decision of the assembly, which is the highest body of the union (see paragraph 32 above, Section 16 of the Statute). 71. However, the domestic courts did not explain, in the light of the relevant principles under Article 11 (see paragraphs 59-61 above), how these considerations relate to the applicant’s conduct when refusing the admission of the would-be members to the union. They did not elaborate on the fact that the applicant’s position of trade union representative at the material time conferred on him the right to take actions to represent the union and to protect the interests of its members (see paragraph 69 above). They also failed to elaborate on the internal relations in the CSH and their effects on the fifteen would-be members’ wish to become members of that union and the applicant’s decision not to accept their membership. 72. In this connection, the Court notes that the domestic courts refused the applicant’s proposal to take further evidence, something which arguably could have shed light on the circumstances in which the fifteen would-be members had wanted to join the trade union (see paragraphs 21-22 and 25 above). In so doing, the courts merely noted that his request was irrelevant, which, given the circumstances, cannot be considered a properly reasoned decision (see, for instance, Kuveydar v. Turkey, no. 12047/05, § 44, 19 December 2017). 73. In these circumstances, in view of the lack of reasoning in the domestic courts’ decisions, including their procedural failure to examine all the relevant circumstances of the case in the light of the principles set out in the Court’s case-law (see paragraphs 59-61 above), and in the absence of any identifiable hardship suffered by the would-be members or any discriminatory motive in the applicant’s actions, it cannot be established convincingly and in conformity with the principles embodied in Article 11 that the interference complained of was necessary in a democratic society. 74. There has accordingly been a violation of Article 11 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION 75. The applicant complained that the criminal proceedings against him had been unfair, particularly as regards his right to obtain the attendance and examination of witnesses for the defence, as provided for under Article 6 §§ 1 and 3 (d) of the Convention. 76. The Government contested that argument. 77. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible. 78. Having regard to the findings relating to Article 11 of the Convention (see paragraphs 72-74 above), the Court considers that it is not necessary to examine whether there has been a violation of Article 6 of the Convention in this case (see, among other authorities, Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 94, ECHR 2009, with further references). APPLICATION OF ARTICLE 41 OF THE CONVENTION 79. 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 80. The applicant claimed EUR 30,000 in respect of non ‑ pecuniary damage. 81. The Government considered this claim to be excessive, unfounded and unsubstantiated. 82. The Court considers that the applicant must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 83. The applicant also claimed HRK 400 (EUR 5 3) for the costs and expenses incurred before the domestic courts. 84. The Government considered this claim unsubstantiated. 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. 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 claimed covering costs and expenses in the domestic proceedings, plus any tax that may be chargeable. 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 11 of the Convention, finding that the interference complained of had not been necessary in a democratic society. It reiterated, in particular, certain principles in its case-law under Article 11, notably that trade unions had the right to control their membership, but that a balance had to be achieved to ensure fair treatment and to avoid abuse of a dominant position. In the present case, the Court found that the domestic courts had not explained, in the light of those principles, how it could be considered that the applicant had acted in an abusive manner when refusing the memberships. In particular, the decisions had lacked detail, and had not elaborated on the applicant’s argument that he had the right as trade-union representative to take actions to protect the interests of the existing members, who had not wished to extend membership at the time, and dismissing as irrelevant his request to hear evidence from witnesses to an internal dispute within the union. |
963 | Death penalty as such contrary to the European Convention on Human Rights | II. RELEVANT NATIONAL AND INTERNATIONAL LEGAL MATERIALS A. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (“the Fourth Geneva Convention”) 90. The Fourth Geneva Convention provides, inter alia : Article 27 “ Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war. ” Article 41 “ Should the Power, in whose hands protected persons may be, consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43. ... ” Article 42 “ The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be. ” Article 70 “ Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war. ... ” Article 77 “ Protected persons who have been accused of offences or convicted by the courts in occupied territory, shall be handed over at the close of occupation, with the relevant records, to the authorities of the liberated territory. ” Article 78 “ If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. ... ” B. The Geneva Conventions Act 1957 91. This statute was enacted to give effect in United Kingdom domestic law to the provisions of the 1949 Geneva Conventions. It provides, inter alia : “1(1) Any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of a grave breach of any of the scheduled conventions or the first protocol shall be guilty of an offence.” The term “grave breach” is defined in each of the four Geneva Conventions of 1949 and in Additional Protocol I as certain acts (including wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial) committed against “protected persons” ( as defined precisely in each Convention ), including prisoners of war, civilians and the wounded. C. Joint Doctrine Publications 2006 92. The purpose of the Ministry of Defence ’ s Joint Doctrine Publication (JDP ) 1-10 “Prisoners of War, Internees and Detainees” (May 2006) is as follows : “1. ... to provide high - level joint doctrinal guidance on how to deal with persons who fall into the hands of UK Armed Forces during military operations, whether Prisoners of War (PW), civilian internees or those detained as a result of suspected or actual criminal activity. 2. This Edition of JDP 1-10 is written primarily for the benefit of the United Kingdom operational Commander responsible for UK Forces ’ compliance with domestic United Kingdom law, international law and the Law of Armed Conflict (LOAC). It should prove useful to those involved in operational planning when the issues covered in this publication may arise. It is also intended to assist those responsible for all aspects of force protection and area security, personnel whose duties involve liaison with local civil authorities, UK Governmental Departments (Foreign and Commonwealth Office (FCO), Home Office, Department for International Development (DFID)), Non-Governmental Organisations (NGOs) and International Organisations (IOs), such as the International Committee of the Red Cross (ICRC).” Chapter 1 of JDP 1-10.3 “Detainees” (July 2006) concerns the handling of detainees. It commences by stating as follows (footnotes omitted): “101. UK Armed Forces may be empowered under the Host Nation ’ s (HN) law to participate in the arrest of criminal suspects or may be involved in the arrest of persons indicted for war crimes. This chapter details the arrangements for the handling of such persons when they are being temporarily detained by UK Armed Forces during military operations abroad that do not amount to International Armed Conflict. 102. Detainees are a category of prisoner distinct from PW and internees. Detainees are those individuals who, during operations abroad not amounting to International Armed Conflict, are held by UK Armed Forces because they have committed, or are suspected of committing, criminal offences. 103. Detainees are a category of prisoner who can only be held during operations other than International Armed Conflict. It should be noted that, during International Armed Conflict, those who have committed or are suspected of committing criminal offences are categorised and treated as internees. 104. The provisions for the handling of detainees will vary according to the national laws of the territory in which UK Forces are operating, the nature of the operation and the legal framework under which UK Forces are operating. This is a complex area and specialist staff and policy advice will invariably be called for at the earliest stages of planning. Detainees should be handed over to the appropriate local authorities at the earliest opportunity, provided that there is no reason to believe they will suffer abuses of their human rights .” Section IV of JDP 1-10.3 is entitled “Transfers” and states: “113. Except for their repatriation or return to their country of residence after the cessation of hostilities, detainees must not be transferred to a State that is not a party to the GCs [Geneva Conventions]. Moreover, they may only be transferred to a State that is a party if the detaining State has satisfied itself that the receiving State is willing and able to apply the GCs. In the event of transfers taking place, the receiving State becomes responsible for the application of the GCs. Should that State fail to carry out its obligations in any important respect, it is the duty of the State which made the transfer either to take effective measures to correct the situation or to request the return of the persons affected. ... In no circumstances may a detainee be transferred to a State where he has reason to fear persecution on account of his political opinions or religious beliefs. 114. It should be borne in mind that the application of the European Convention on Human Rights to those held in UK facilities in some circumstances may impose additional restrictions on their transfer, in particular if they are likely to be tried for an offence which carries the death penalty.” Section V of JDP 1-10.3 deals with “Handover to the Host Nation Authorities”. It provides : “116. Detainees must be handed over to the HN authorities as soon as practicable in order that detainees can be dealt with according to the local criminal justice system. ... 117. There may be cases where handover to the HN cannot take place immediately: a. If the HN lacks sufficient criminal justice infrastructure to take custody of the detainee, for example, courts, police, custodial facilities and lawyers. b. If there are reasonable grounds to suspect the handover would compromise the safety of the detainee.” D. “Diplomatic asylum” 93. Article 41 of the Vienna Convention on Diplomatic Relations of 1961 provides: “1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State. 2. All official business with the receiving State entrusted to the mission by the sending State shall be conducted with or through the Ministry for Foreign Affairs of the receiving State or such other ministry as may be agreed. 3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving State.” 94. In R(B) v. Secretary of State for Foreign and Commonwealth Affairs, cited above, the Court of Appeal observed as follows: “In a case such as Soering the Contracting State commits no breach of international law by permitting an individual to remain within its territorial jurisdiction rather than removing him to another State. The same is not necessarily true where a State permits an individual to remain within the shelter of consular premises rather than requiring him to leave. It does not seem to us that the Convention can require States to give refuge to fugitives within consular premises if to do so would violate international law. So to hold would be in fundamental conflict with the importance that the Grand Chamber attached in Banković to principles of international law. Furthermore, there must be an implication that obligations under a Convention are to be interpreted, insofar as possible, in a manner that accords with international law. What has public international law to say about the right to afford ‘ diplomatic asylum ’? Oppenheim [Oppenheim ’ s International Law edited by the late Sir Robert Jennings QC and Sir Arthur Watts QC 9th edition vol 1 ] deals with this topic at paragraph 495, from which we propose to quote at a little length: ‘ Paragraph 495 : So-called diplomatic asylum The practice of granting diplomatic asylum in exceptional circumstances is of long-standing, but it is a matter of dispute to what extent it forms part of general international law. There would seem to be no general obligation on the part of the receiving State to grant an ambassador the right of affording asylum to a refugee, whether criminal or other, not belonging to this mission. Of course, an ambassador need not deny entrance to refugees seeking safety in the embassy. But as the International Court of Justice noted in the Asylum case ... in the absence of an established legal basis, such as is afforded by treaty or established custom, a refugee must be surrendered to the territorial authorities at their request and if surrender is refused, coercive measures may be taken to induce it. Bearing in mind the inviolability of embassy premises, the permissible limits of such measures are not clear. The embassy may be surrounded by soldiers, and ingress and egress prevented; but the legitimacy of forcing an entry in order forcibly to remove the refugee is doubtful, and measures involving an attack on the envoy ’ s person would clearly be unlawful. Coercive measures are in any case justifiable only in an urgent case, and after the envoy has in vain been requested to surrender the refugee. It is sometimes suggested that there is, exceptionally, a right to grant asylum on grounds of urgent and compelling reasons of humanity, usually involving the refugee ’ s life being in imminent jeopardy from arbitrary action. The practice of States has afforded instances of the grant of asylum in such circumstances. The grant of asylum ‘ against the violent and disorderly action of irresponsible sections of the population ’ is a legal right which, on grounds of humanity, may be exercised irrespective of treaty; the territorial authorities are bound to grant full protection to a diplomatic mission providing shelter for refugees in such circumstances. There is some uncertainty how far compelling reasons of humanity may justify the grant of asylum in other cases. The International Court ’ s judgment in the Asylum case suggests that the grant of asylum may be justified where ‘ in the guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of justice were corrupted by measures clearly prompted by political aims ’. However, the Court went on to emphasise that ‘ the safety which arises out of asylum cannot be construed as a protection against the regular application of the laws and against the jurisdiction of legally constituted tribunals ’. Thus it would seem not to be enough to show that a refugee is to be tried for a ‘ political ’ offence: it must be shown that justice would be subordinated to political dictation and the usual judicial guarantees disregarded. Even where permissible, asylum is only a temporary expedient and may only be afforded so long as the reasons justifying it continue to subsist. ’ The propositions in Oppenheim are based, to a large extent, on what seem to be the only juridical pronouncements on the topic to carry authority. On 20 November 1950 the International Court of Justice gave judgment in a dispute between Colombia and Peru that the two States had referred to the Court – Asylum Case (Colombia v. Peru) (1950) ICJ Rep. 206. Colombia had given refuge in its embassy in Peru to the leader of a military rebellion, which had been almost instantaneously suppressed. At issue was the effect of two Conventions to which both Colombia and Peru were party which made provision in relation to the grant of asylum to political refugees but not to criminals. Colombia ’ s arguments included the contention that by customary international law it was open to Colombia unilaterally to determine that the fugitive fell to be classified as a political refugee. Much of the judgment related to the effects of the two Conventions, but the Court made some general comments in relation to ‘ diplomatic asylum ’ : ‘ The arguments submitted in this respect reveal a confusion between territorial asylum (extradition), on the one hand, and diplomatic asylum, on the other. In the case of extradition, the refugee is within the territory of the State of refuge. A decision with regard to extradition implies only the normal exercise of the territorial sovereignty. The refugee is outside the territory of the State where the offence was committed, and a decision to grant him asylum in no way derogates from the sovereignty of that State. In the case of diplomatic asylum, the refugee is within the territory of the State where the offence was committed. A decision to grant diplomatic asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of the territorial State and constitutes an intervention in matters which are exclusively within the competence of the State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each particular case. ’ In 1984 six fugitives who were subject to detention orders issued by the South African government sought refuge in the British Consulate in Durban. They became known as the Durban six. The British Government decided that it would not compel them to leave but that it would not intervene on their behalf with the South African authorities. They were told that they could not stay indefinitely and, eventually they left. Five of them were immediately arrested and charged with high treason, which carried the death penalty. We were referred to an Article in Human Rights Quarterly 11 (1989) by Susanne Riveles, which included the following propositions: ‘ There exists no universally accepted international agreement to assure a uniform response by States to grant refuge in a mission in an emergency. Most countries, with the exception of those in Latin America, deny outright the claim to diplomatic asylum because it encroaches upon the State ’ s sovereignty. Some countries give limited recognition to the practice, allowing ‘ temporary safe stay ’ on a case-by-case basis to persons under threat of life and limb. It should be recognised that a State has the permissible response of granting temporary sanctuary to individuals or groups in utter desperation who face repressive measures in their home countries. Moreover, this should be considered a basic human right, to be invoked by those fleeing from the persecution for reasons of race, religion, or nationality, or for holding a political opinion in an emergency situation involving the threat of violence. ’ Discussion We have concluded that, if the Soering approach is to be applied to diplomatic asylum, the duty to provide refuge can only arise under the Convention where this is compatible with public international law. Where a fugitive is facing the risk of death or injury as the result of lawless disorder, no breach of international law will be occasioned by affording him refuge. Where, however, the receiving State requests that the fugitive be handed over the situation is very different. The basic principle is that the authorities of the receiving State can require surrender of a fugitive in respect of whom they wish to exercise the authority that arises from their territorial jurisdiction; see Article 55 of the 1963 Vienna Convention. Where such a request is made the Convention cannot normally require the diplomatic authorities of the sending State to permit the fugitive to remain within the diplomatic premises in defiance of the receiving State. Should it be clear, however, that the receiving State intends to subject the fugitive to treatment so harsh as to constitute a crime against humanity, international law must surely permit the officials of the sending State to do all that is reasonably possible, including allowing the fugitive to take refuge in the diplomatic premises, in order to protect him against such treatment. In such circumstances the Convention may well impose a duty on a Contracting State to afford diplomatic asylum. It may be that there is a lesser level of threatened harm that will justify the assertion of an entitlement under international law to grant diplomatic asylum. This is an area where the law is ill-defined. So far as Australian law was concerned, the applicants had escaped from lawful detention under the provisions of the Migration Act 1958. On the face of it international law entitled the Australian authorities to demand their return. We do not consider that the United Kingdom officials could be required by the Convention and the Human Rights Act to decline to hand over the applicants unless this was clearly necessary in order to protect them from the immediate likelihood of experiencing serious injury.” E. Explanatory report to Protocol No. 13 to the Convention 95. At its meeting on 21 February 2002, the Committee of Ministers of the Council of Europe adopted the text of Protocol No. 13 to the Convention and authorised the publication of the following explanatory report (footnotes omitted): “1. The right to life, ‘ an inalienable attribute of human beings ’ and ‘ supreme value in the international hierarchy of human rights ’ is unanimously guaranteed in legally binding standards at universal and regional levels. 2. When these international standards guaranteeing the right to life were drawn up, exceptions were made for the execution of the death penalty when imposed by a court of law following a conviction of a crime for which this penalty was provided for by law (cf., for example, Article 2 § 1 of the ... Convention ...). 3. However, as illustrated below, there has since been an evolution in domestic and international law towards abolition of the death penalty, both in general and, more specifically, for acts committed in time of war. 4. At the European level, a landmark stage in this general process was the adoption of Protocol No. 6 to the Convention in 1982. This Protocol, which to date has been ratified by almost all States Parties to the Convention, was the first legally binding instrument in Europe – and in the world – which provided for the abolition of the death penalty in time of peace, neither derogations in emergency situations nor reservations being permitted. Nonetheless, under Article 2 of the said Protocol, ‘ 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 ’. However, according to the same Article, this possibility was restricted to the application of the death penalty in instances laid down in the law and in accordance with its provisions. 5. Subsequently, the Parliamentary Assembly established a practice whereby it required from States wishing to become a member of the Council of Europe that they committed themselves to apply an immediate moratorium on executions, to delete the death penalty from their national legislation, and to sign and ratify Protocol No. 6. The Parliamentary Assembly also put pressure on countries which failed or risked failing to meet the commitments they had undertaken upon accession to the Council of Europe. More generally, the Assembly took the step in 1994 of inviting all member States who had not yet done so, to sign and ratify Protocol No. 6 without delay (Resolution 1044 (1994) on the abolition of capital punishment). 6. This fundamental objective to abolish the death penalty was also affirmed by the Second Summit of Heads of State and Government of member States of the Council of Europe (Strasbourg, October 1997). In the Summit ’ s Final Declaration, the Heads of State and Government called for the ‘ universal abolition of the death penalty and [insisted] on the maintenance, in the meantime, of existing moratoria on executions in Europe ’. For its part, the Committee of Ministers of the Council of Europe has indicated that it ‘ shares the Parliamentary Assembly ’ s strong convictions against recourse to the death penalty and its determination to do all in its power to ensure that capital executions cease to take place ’. The Committee of Ministers subsequently adopted a Declaration ‘ For a European Death Penalty-Free Area ’. 7. In the meantime, significant related developments in other fora had taken place. In June 1998, the European Union adopted ‘ Guidelines to EU Policy Toward Third Countries on the Death Penalty ’ which, inter alia, state its opposition to this penalty in all cases. Within the framework of the United Nations, a Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, was adopted in 1989. For a few years, the UN Commission on Human Rights has regularly adopted Resolutions which call for the establishment of moratoria on executions, with a view to completely abolishing the death penalty. It should also be noted that capital punishment has been excluded from the penalties that the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda are authorised to impose. 8. The specific issue of the abolition of the death penalty also in respect of acts committed in time of war or of imminent threat of war should be seen against the wider background of the above-mentioned developments concerning the abolition of the death penalty in general. It was raised for the first time by the Parliamentary Assembly in Recommendation 1246 (1994), in which it recommended that the Committee of Ministers draw up an additional protocol to the Convention, abolishing the death penalty both in peace- and in wartime. 9. While the Steering Committee for Human Rights (CDDH), by a large majority, was in favour of drawing up such an additional protocol, the Committee of Ministers at the time considered that the political priority was to obtain and maintain moratoria on executions, to be consolidated by complete abolition of the death penalty. 10. A significant further step was made at the European Ministerial Conference on Human Rights, held in Rome on 3-4 November 2000 on the occasion of the 50th anniversary of the Convention, which pronounced itself clearly in favour of the abolition of the death penalty in time of war. In Resolution II adopted by the Conference, the few member States that had not yet abolished the death penalty nor ratified Protocol No. 6 were urgently requested to ratify this Protocol as soon as possible and, in the meantime, respect strictly the moratoria on executions. In the same Resolution, the Conference invited the Committee of Ministers ‘ to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war ’ ( paragraph 14 of Resolution II). The Conference also invited member States which still had the death penalty for such acts to consider its abolition (ibidem). 11. In the light of texts recently adopted and in the context of the Committee of Ministers ’ consideration of the follow-up to be given to the Rome Conference, the Government of Sweden presented a proposal for an additional protocol to the Convention at the 733rd meeting of the Ministers ’ Deputies (7 December 2000). The proposed protocol concerned the abolition of the death penalty in time of war as in time of peace. 12. At their 736th meeting (10-11 January 2001), the Ministers ’ Deputies instructed the CDDH ‘ to study the Swedish proposal for a new protocol to the Convention ... and submit its views on the feasibility of a new protocol on this matter ’. 13. The CDDH and its Committee of Experts for the Development of Human Rights (DH-DEV) elaborated the draft protocol and the explanatory report thereto in the course of 2001. The CDDH transmitted the draft protocol and explanatory report to the Committee of Ministers on 8 November 2001. The latter adopted the text of the Protocol on 21 February 2002 at the 784th meeting of the Ministers ’ Deputies and opened it for signature by member States of the Council of Europe on 3 May 2002.” F. The Parliamentary Assembly of the Council of Europe ’ s (PACE) Resolution 1560 96. On 26 June 2007 PACE adopted the following resolution on the “ Promotion by Council of Europe member States of an international moratorium on the death penalty ”: “1. The Parliamentary Assembly confirms its strong opposition to the death penalty in all circumstances. The death penalty is the ultimate form of cruel, inhuman and degrading punishment: it violates the right to life. The Assembly takes pride in its decisive contribution to making the member States of the Council of Europe a de facto death penalty-free zone, and strongly regrets the fact that one European country – Belarus – still carries out executions. 2. The Assembly has also on several occasions taken a strong stand against executions in other parts of the world, and in particular in the Council of Europe observer States which retain the death penalty, namely Japan and the United States of America. 3. It notes with satisfaction that the death penalty is on the decline worldwide, as shown by a 25% decrease in executions and death sentences between 2005 and 2006. 4. It also draws attention to the fact that more than 90% of known executions in 2006 took place in only six countries: China, Iran, Pakistan, Iraq, Sudan, and the United States of America – a Council of Europe observer State. Based on available public records, which may cause the number of executions to be underestimated in countries lacking free media or an accountable government, China alone accounts for more than two thirds of all executions worldwide. Iran ’ s execution rate nearly doubled from 2005 to 2006. Iraq also witnessed a dramatic increase in executions in 2006, bringing the number up to 65. Saudi Arabia, among the worst offenders in 2005, saw a decrease in 2006 to 39 executions, but witnessed an upsurge in early 2007 (48 executions through to the end of April). 5. The small number of countries that still resort to executions on a significant scale is becoming increasingly isolated in the international community. Between 1977 and 2006, the number of abolitionist countries rose from 16 to 89. This number increases to 129 when including those countries which have not carried out any executions for the past ten years or more and which can therefore be considered as abolitionist in practice. The time is now ripe to give new impetus to the campaign in favour of a death penalty-free world. 6. The Assembly therefore strongly welcomes Italian efforts in the United Nations General Assembly in advocating for a moratorium on the death penalty, as well as the support of the European Union for this initiative, and expects it to be proceeded with in such a manner as to guarantee the best possible success within the United Nations. 7. A moratorium on executions is but one step in the right direction, the ultimate goal remaining the complete abolition of the death penalty in all circumstances. 8. In the meantime, a moratorium is an important step as it saves lives immediately and has the potential of demonstrating to the public in retentionist countries that an end to State-sponsored killings does not lead to any increase in violent crime. On the contrary, a moratorium on executions can bring about a change of atmosphere in society fostering greater respect for the sanctity of human life, and thus contribute to reversing the trend towards ever-increasing hate and violence. 9. Finally, a universal moratorium on the death penalty represents a concrete and highly symbolic political act, which could help change an international climate which is all too often characterised by violent actions which take their victims – by no means exclusively in a context of conflict – from among civilian populations. A universal moratorium on the death penalty would also make a significant contribution to the establishment of a shared and operational body of principles and rules leading towards a more effective rule of law at international level. 10. The Assembly calls on all member and observer States of the Council of Europe to actively support the initiative for the abolition of the death penalty in the UN General Assembly and to make the best use of their influence in order to convince countries that are still on the sidelines to join in. In this context, it warmly welcomes the resolution in the same spirit, adopted by the European Parliament on 26 April 2007, on the initiative for a universal moratorium on the death penalty. 11. At the Luxembourg meeting of 18 June 2007, the General Affairs and External Relations Council (GAERC) of the European Union unanimously made a formal commitment to tabling – at the next session of the General Assembly of the United Nations – a resolution calling for a moratorium on executions all over the world. 12. The Assembly recalls that, whilst 60 States have so far ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly in 1989 to promote the universal abolition of the death penalty, 10 Council of Europe member and observer States have not yet done so, namely Albania, Armenia, France, Japan (observer), Latvia, Mexico (observer), Poland (signed but not ratified), the Russian Federation, Ukraine, and the United States of America (observer). For countries which have de facto and de jure abolished the death penalty (Albania, Armenia, France, Latvia, Mexico (observer), Poland and Ukraine), or which maintain a moratorium (Russian Federation), the ratification of the Second Optional Protocol to the ICCPR would be a valuable gesture of political support for abolition, and would contribute to further isolating the remaining retentionist countries. 13. The Council of Europe ’ s own instruments against the death penalty are also still lacking ratifications. In particular, Protocol No. 6 to the European Convention on Human Rights concerning the abolition of the death penalty (ETS No. 114) has still not been ratified by the Russian Federation, despite the commitment to do so undertaken upon its accession to the Council of Europe in 1996. Protocol No. 13 to the Convention concerning the abolition of the death penalty in all circumstances (ETS No. 187), including in time of war or imminent threat of war, has still not been signed by Azerbaijan and the Russian Federation, and has still not been ratified by Armenia, France, Italy, Latvia, Poland and Spain. For the sake of the strong and unified signal to be sent by the Council of Europe as a whole, the Assembly calls on the countries concerned to sign and ratify these instruments without further delay. 14. The Assembly notes in this context that Italy ’ s Chamber of Deputies approved on 2 May 2007, in a second reading, the constitutional bill containing amendments to Article 27 of the Constitution concerning the abolition of the death penalty; the bill is presently before the senate for its second reading and final adoption under the current procedure for constitutional revision. The bill aims to delete from Article 27 § 4 the following words: ‘ unless in the cases provided for by military laws in case of war ’, thus eliminating any reference to the death penalty in the Italian Constitution and making it possible to ratify Protocol No. 13 to the Convention. 15. Also, the Assembly reiterates its view, noted in Recommendation 1760 (2006) on the position of the Parliamentary Assembly as regards the Council of Europe member and observer States which have not abolished the death penalty, that the death penalty should be abolished in Abkhazia, South Ossetia and the Transnistrian Moldavan Republic, and that the sentences of all prisoners currently on death row in these territories should be immediately commuted to terms of imprisonment in order to put an end to the cruel and inhuman treatment of those who have been kept on death row for years in a state of uncertainty as to their ultimate fate. 16. The Assembly fully supports the Conference to establish a European Day against the Death Penalty, to be held in Lisbon on 9 October 2007, and expects all member States of the Council of Europe also to show their unstinting support. Given its pioneering work on the abolition of the death penalty in Europe and beyond, the Assembly must play a central role, including through involvement in the drafting of the joint declaration, which its President should co-sign at the inaugural conference. The Assembly will stand ready to contribute to publicity and promotion, including through coordination of supporting events in member States ’ national parliaments. ” G. Cases concerning the obligation on a sending State to make representations against the use of the death penalty by the receiving State after the transfer of an individual from its jurisdiction 97. In Chitat Ng v. Canada ( Communication No. 469/1991, UN Doc. CCPR/C/49/D/469/1991, 7 January 1994), the United Nations Human Rights Committee found that Mr Ng ’ s extradition to the United States of America, where he risked execution, gave rise to a violation by Canada of the International Covenant on Civil and Political Rights (ICCPR). The Committee made the following request : “18. The Human Rights Committee requests the State Party to make such representations as might still be possible to avoid the imposition of the death penalty and appeals to the State Party to ensure that a similar situation does not arise in the future.” 98. In Roger Judge v. Canada ( Communication No. 829/1998, UN Doc. CCPR/C/78/D/829/1998, 20 October 2003), the Committee found that Mr Judge ’ s deportation to the United States, where he had been sentenced to be executed, gave rise to violations by Canada of the ICCPR, and continued: “12. Pursuant to Article 2 § 3 (a) of the Covenant, the Committee concludes that the author is entitled to an appropriate remedy which would include making such representations as are possible to the receiving State to prevent the carrying out of the death penalty on the author.” 99. In its judgment of 11 October 2002 in Boumediene and Others, the Human Rights Chamber for Bosnia and Herzegovina found a number of violations of the Convention arising from the transfer of the claimants, who had been detained in Bosnia and Herzegovina, to the custody of the US security services who subsequently removed them to the US Naval Base at Guantánamo Bay. The Human Rights Chamber then ordered Bosnia and Herzegovina, inter alia, to take all possible steps to prevent the death penalty from being pronounced against and executed on the applicants, including attempts to seek assurances from the United States via diplomatic contacts that the applicants would not be subjected to the death penalty. THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 13 100. The applicants alleged that their transfer to the custody of the Iraqi High Tribunal ( IHT ) exposed them to a real risk of the death penalty, in breach of Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. The Government disagreed. Article 2 § 1 provides: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” Article 3 provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Protocol No. 13 provides : “Preamble 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 ... 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: Abolition of the death penalty The death penalty shall be abolished. No one shall be condemned to such penalty or executed. Article 2: Prohibition of derogations No derogation from the provisions of this Protocol shall be made under Article 15 of the Convention.” A. The parties ’ submissions 1. The applicants 101. The applicants submitted that at the date of transfer they faced allegations of war crimes, punishable with sentences including the death penalty. In trials before the IHT to date, 78.4 % of those tried had been convicted and, of those, 35% had been sentenced to death. Despite strenuous efforts and a letter from one of the victim ’ s family asking for clemency, the Government had, by the date of transfer, been unable to obtain an assurance from the Iraqi authorities that the death penalty would not be imposed. On the face of the evidence, there was a clear and real risk that the applicants would be executed if convicted by the IHT, as both the Divisional Court and the Court of Appeal had accepted. 102. The applicants reasoned that in accordance with Article 30 of the Vienna Convention on the Law of Treaties of 1969, Article 2 should be interpreted in the light of Article 1 of Protocol No. 13. Thus, for those States which had ratified the Protocol, the exception in the second part of the second sentence of Article 2 § 1 should be abrogated, with the effect that the passing or execution of a death penalty would breach Article 2 as well as Article 1 of Protocol No. 13. Support for this approach could be found in Soering v. the United Kingdom ( 7 July 1989, § § 102-04, Series A no. 161 ), and Öcalan v. Turkey ( [GC], no. 46221/99, §§ 164-65, ECHR 2005 ‑ IV ). Moreover, the position across Europe had developed significantly since Öcalan, with Protocol No. 13 in force in over 85% of the Council of Europe member States. Hanging was an ineffectual and extremely painful method of killing, such as to amount to inhuman and degrading treatment in breach of Article 3. 103. In any event, the Court in Öcalan ( cited above, §§ 166-69 ) had held that passing the death penalty following a trial which failed to meet “the most rigorous standards of fairness ... both at first instance and on appeal” would breach both Articles 2 and 3. It was argued by the Government in the domestic proceedings, and accepted by the Court of Appeal, that the threshold in foreign cases was met only by the imposition of the death penalty following a flagrantly unfair trial. However, this conclusion was not borne out by the Court ’ s case-law; in Bader and Kanbor v. Sweden ( no. 13284/04, § 47, ECHR 2005 ‑ XI ), the Court referred also to the risk of the imposition of the death penalty following an unfair trial. To the extent that Bader and Kanbor was authority for the Government ’ s position, that decision was inconsistent with the reasoning of the Grand Chamber in Öcalan. 104. There was no obligation under either Iraqi domestic law or international law which required either for the applicants ’ cases to be referred to the Iraqi criminal courts or for them to be reclassified as criminal detainees. The laws and regulations applicable in Iraq, whether adopted by the Coalition Provisional Authority ( CPA ) or by the Iraqi government, could not be determinative of the issues before the Court, which was concerned with the United Kingdom ’ s obligations under the Convention. In any event, CPA Memorandum No. 3 (Revised) was expressly limited to persons taken into detention after June 2004 and “not considered security internees”, whereas the applicants were taken into detention before that date and had at all times been held as security internees. 105. Moreover, there was no evidence that the Iraqi authorities had in any way sought the referral of the applicants ’ case. The applicants were alleged to have been agents of the former Iraqi regime who had, three days into the active hostilities between Iraq and the United Kingdom, killed agents of the United Kingdom State. Their alleged offence was an international crime, as much contrary to United Kingdom law as it was to Iraqi law. It was the United Kingdom, not Iraq, which detained them, investigated their alleged offences and thereafter sought their prosecution. The minutes of the meetings of the Divisional Internment Review Committee ( DIRC: see paragraph 44 above) indicated that the case was only accepted by the Iraqi authorities following considerable persuasion and assistance by the United Kingdom authorities. The Government ’ s repeated suggestion that the decision to detain and prosecute the applicants before the Iraqi courts was an unfettered exercise of Iraqi sovereignty, with which the United Kingdom Government could not contemplate interfering, was unsustainable given the content of the DIRC minutes. The Government ’ s observations focused on the requirement under international law to respect Iraqi sovereignty and failed to mention the United Kingdom ’ s sovereignty. Equally, while the Government placed repeated reliance on the relevant United Nations Security Council resolutions ( UNSCRs ), they had failed to refer to the obligations clearly expressed therein that the States concerned had to comply with their international obligations, including under humanitarian and human rights law. The United Kingdom Ministry of Defence ’ s Joint Doctrine Publication on “ Detainees ” (see paragraph 9 2 above) also recognised that detainees held by British armed forces abroad should not be transferred to the authorities of the territorial State where there was a reason to believe that they would suffer abuses of their human rights. However, the DIRC minutes also showed that the decision to refer the case was taken with high-level authorisation in circumstances where the United Kingdom authorities were fully aware of the risk to the applicants of the death penalty. 106. The applicants further submitted that the Government had not established that, even if there had been an obligation under Iraqi or international law to transfer the applicants to Iraqi jurisdiction, it had to compel the disapplication of the Convention. The national courts had followed the Court of Appeal ’ s approach in R(B) (see paragraph 9 4 above) but there was no authority in the Court ’ s case-law to show that the R(B) approach was correct. Indeed, the Government ’ s contention that its other international obligations should have the effect of entirely displacing its obligations under the Convention was irreconcilable with the judgment in Soering ( cited above ). The requirement on the Court was to interpret the Convention as far as possible in conformity with other international obligations, while heeding its special character as a human rights treaty. While the applicants accepted that the death penalty was not contrary to universal norms of customary international law, there was a clear opinion juris and State practice supporting a regional customary international - law prohibition on exposure to the death penalty by European States. Thus, in addition to the obligation under the Convention, the United Kingdom was under a customary international - law obligation not to expose the applicants to a risk of the death penalty. The Court had also to consider this obligation when interpreting the respondent State ’ s Convention obligations in this case. 107. If the applicants ’ cases had not been referred to the Iraqi courts and if the applicants had not been reclassified as criminal detainees, they would have remained as security internees. As such, they could have remained in internment only for so long as they presented an imperative threat to security and could have been released as soon as the threat was perceived as no longer existing. The United Kingdom had released numerous security internees; it appeared from the DIRC minutes that sixty-nine former internees were released from the detention facility where the applicants were held between April and October 2007 and the statistics provided on the Ministry of Defence website showed a total of one hundred and sixty-two former internees set at liberty in 2007. In the alternative, it would have been open to the United Kingdom authorities to prosecute the applicants on war crimes charges. This would have been permitted during the period of the occupation under Article 70 of the Fourth Geneva Convention (see paragraph 90 above). Even once the occupation had come to an end in June 2004 the United Kingdom retained universal jurisdiction over alleged war crimes, by virtue of section 1 of the Geneva Conventions Act 1957 (see paragraph 9 1 above). The memorandum of understanding ( MOU ) of 8 November 2004 (see paragraph 25 above) specifically envisaged that the United Kingdom would be entitled to take custody with a view to trying them for war crimes: section 3(4)(a)(i) required that, in relation to any criminal suspect transferred by the United Kingdom to the Iraqi authorities, Iraq would inform the United Kingdom before releasing them and would comply with any request for the United Kingdom to reassume custody if they were “wanted for prosecution by any State that has contributed forces to the MNF [ Multinational Force ] for breaches of the laws and customs of war”. Any suggestion that the United Kingdom had no ongoing legal power to detain or try persons suspected of war crimes was therefore at odds with the agreement concluded with Iraq. Such a trial could have taken place on a United Kingdom base in Iraq, in a neutral third State or in the United Kingdom. However, it does not appear that any consideration was given to this method of reconciling the desire to prosecute the applicants and the need to safeguard their human rights, nor any attempt made to negotiate such an outcome with the Iraqi authorities. 2. The Government 108. The Government submitted that, at the date of transfer, there were no substantial grounds for believing that the applicants would face the death penalty, if convicted. While it was correct that Iraqi law permitted capital punishment in respect of offences such as those charged against the applicants, there was no presumption in favour of the death penalty. Following more recent trials before the IHT, such as the 1991 Uprising, the Friday Prayers and the Merchants cases, all of which involved extremely serious charges of crimes against the Iraqi people, only six of the twenty-seven individuals convicted had received the death penalty. In addition, a letter had been sent by relatives of one of the murdered soldiers requesting clemency and the United Kingdom authorities had communicated their opposition to the death penalty to the IHT ’ s President and to the Iraqi authorities (see paragraphs 27-35 and 50-54 above). 109. Moreover, even if the Court were to find that the applicants were at a real risk of being executed following conviction by the IHT, the relevant test under Articles 2 and 3 was that set out in Bader and Kanbor ( cited above ), namely the risk that the individual would suffer a flagrant denial of a fair trial in the receiving State, the outcome of which was or was likely to be the death penalty. In the present case, the evidence, as the domestic courts held, was that the applicants would receive a fair trial before the IHT. 110. The Government were opposed to capital punishment and the United Kingdom was bound by the prohibition on the death penalty in Article 1 of Protocol No. 13. They had communicated their concerns about the reintroduction of the death penalty to the Iraqi authorities (see paragraphs 27-35 above). Nonetheless, the availability of the death penalty in Iraqi law and/or its imposition by the Iraqi courts would not, as such, be contrary to international law. Nor could they accept that execution by hanging per se resulted in additional suffering, over and above that inherent in the carrying out of the death penalty, such as to raise an issue under Article 3. In these circumstances, any risk of its imposition would not justify the United Kingdom in refusing to comply with its obligation under international law to surrender Iraqi nationals, detained at the request of the Iraqi courts, to those courts for trial. The Convention had to be interpreted in the light of and in harmony with other principles of international law and the relevant international law principle in this case could not be more fundamental: the principle that all States must recognise the sovereignty of other States. 111. The Court had to give effect to limitations on the exercise of a Contracting State ’ s jurisdiction, generally accepted by the community of nations, stemming from the fact that the State was acting on the territory of a third State. From the early stages of the occupation period, the United Nations Security Council ( UNSC ) sought to uphold the sovereignty of Iraq and to establish a government of Iraq by Iraq; this could be seen in UNSCR 1483 of 22 May 2003, for example (see paragraph 14 above). The actions of the occupiers were limited by international law in so far as concerned the powers of internment. Pursuant to Article 78 of the Fourth Geneva Convention (see paragraph 90 above), which applied directly during the occupation period, internment was only permissible where necessary for imperative reasons of security. That restriction was reflected in the applicable domestic law, namely section 7(1) of CPA Memorandum No. 3 of 18 June 2003 (see paragraph 13 above). The sovereignty of Iraq, the government of Iraq by Iraq and the limited powers of third States in Iraq were reflected all the more strongly in the UNSCRs in the post-occupation phase: see UNSCR 1546 (paragraph 19 above). It followed from Iraq ’ s sovereignty that the United Kingdom was not entitled to intern or detain Iraqi nationals on Iraq ’ s territory except as permitted by Iraq or otherwise authorised by a binding UNSCR. CPA Order No. 48, enacted pursuant to UNSCR 1483, provided for the establishment of the IHT precisely so that the Iraqi judicial authorities could investigate and try Iraqi nationals accused of war crimes in Iraq. Once informed of the evidence against the applicants, the Iraqi authorities wished to investigate and try them. This was why arrest warrants were issued and why the IHT repeatedly requested the transfer of the applicants to its custody. 112. The United Kingdom had no option other than to transfer the applicants. It was operating in a foreign sovereign State which was demanding the applicants ’ return. As of midnight on 31 December 2008 the United Kingdom would have had no legal basis of any kind for detaining the applicants and no physical means of continuing to detain them or preventing the Iraqi authorities from entering the base and removing them. The other options would have been equally unworkable. If the United Kingdom had released the applicants, this would have amounted to a violation of Iraqi sovereignty and would have impeded the Iraqi authorities in carrying out their international - law obligation to bring alleged war criminals to justice. It would have been impossible to try the applicants in the United Kingdom. The United Kingdom could not simply remove from Iraq two Iraqi nationals suspected of war crimes committed in Iraq. Removal would have been dependent on the permission of Iraq and would otherwise have been in violation of Iraqi sovereignty. Extradition would also have required the consent of the Iraqi authorities. For these reasons, the case was clearly distinguishable from such cases as Soering, cited above, or Chahal v. the United Kingdom ( 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V), where the remedy sought by the applicant was to remain on the Contracting State ’ s territory and where the Contracting State had a discretion whether or not to extradite or deport him. 3. The third parties 113. The Equality and Human Rights Commission submitted that there was a theme in the jurisprudence of the Court regarding the relationship between a State ’ s international - law obligations and its substantive obligations under the Convention. The Court had not generally regarded the substantive Convention obligations as displaced by virtue of a competing or conflicting international - law obligation. A similar approach had recently been taken by the Grand Chamber of the Court of Justice of the European Union in Kadi and Al Barakaat International Foundation v. Council and Commission (Joined Cases C-402/05 P and C - 415/05 P ). 114. The group of interveners (see paragraph 6 above) similarly maintained that, in accordance with Convention principles and jurisprudence and the general principles of customary international law as declared in the Vienna Convention on the Law of Treaties of 1969, the European Convention on Human Rights was not generally displaced by other international legal obligations, including bilateral treaties. The primary factors to be taken into account in resolving the question of an apparent conflict of obligations were: (1) the form of the legal instrument concerned; (2) the degree of compatibility the putatively conflicting obligation maintained with the Convention; for example whether a treaty providing for a transfer of competencies provided for equivalent protection in relation to Convention rights; and (3) the nature of the Convention rights affected. The Convention was a multilateral treaty containing erga omnes partes human rights obligations. A State entering into a conflicting agreement with a non-Convention State continued to owe legal obligations to the other States Parties to the Convention. The Convention jurisprudence, particularly in cases concerning extradition, affirmed that other treaties did not displace the obligations under the Convention. In a line of cases, the Court had considered treaties providing for the transfer of competencies to international organisations and held such transfers to be generally permissible, but only provided that Convention rights continued to be secured in a manner which afforded protection at least equivalent to that provided under the Convention. The interveners submitted that similar principles should apply where a subsequent international obligation of a Contracting State, by treaty or otherwise, provided for joint or cooperative activity with another State, that impacted on the protection of Convention rights within the Contracting State ’ s jurisdiction. B. The Court ’ s assessment 1. General principles ( a ) Protocol No. 13 to the Convention and the abolition of the death penalty 115. The Court takes as its starting point the nature of the right not to be subjected to the death penalty. Judicial execution involves the deliberate and premeditated destruction of a human being by the State authorities. Whatever the method of execution, the extinction of life involves some physical pain. In addition, the foreknowledge of death at the hands of the State must inevitably give rise to intense psychological suffering. The fact that the imposition and use of the death penalty negates fundamental human rights has been recognised by the member States of the Council of Europe. In the Preamble to Protocol No. 13 the Contracting States describe themselves as “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 ”. 116. Sixty years ago, when the Convention was drafted, the death penalty was not considered to violate international standards. An exception was therefore included to the right to life, so that Article 2 § 1 provides that “ [n] o 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”. However, as recorded in the explanatory report to Protocol No. 13, there has subsequently been an evolution towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe (see paragraph 9 5 above; see also paragraph 96 above ). Protocol No. 6 to the Convention, which abolishes the death penalty except in respect of “ acts committed in time of war or of imminent threat of war ”, was opened for signature on 28 April 1983 and came into force on 1 March 1985. Following the opening for signature of Protocol No. 6, the Parliamentary Assembly of the Council of Europe established a practice whereby it required States wishing to join the Council of Europe to undertake to apply an immediate moratorium on executions, to delete the death penalty from their national legislation and to sign and ratify Protocol No. 6. All the member States of the Council of Europe have now signed Protocol No. 6 and all save Russia have ratified it. 117. In October 1997 the Council of Europe Heads of State and Government called for the “ universal abolition of the death penalty ” (see paragraph 9 5 above). Resolution II adopted at the European Ministerial Conference on Human Rights on 3 to 4 November 2000 invited the Committee of Ministers “ to consider the feasibility of a new additional protocol to the Convention which would exclude the possibility of maintaining the death penalty in respect of acts committed in time of war or of imminent threat of war”. Protocol No. 13, which abolishes the death penalty in all circumstances, was opened for signature on 3 May 2002 and came into force on 1 July 2003. At the date of adoption of the present judgment, Protocol No. 13 has been ratified by forty-two member States and signed but not ratified by a further three (Armenia, Latvia and Poland). Azerbaijan and Russia are alone in not having signed the Protocol. It was signed by the United Kingdom on 3 May 2002, ratified on 10 October 2003 and came into force in respect of that State on 1 February 2004. 118. The Court considers that, in respect of those States which are bound by it, the right under Article 1 of Protocol No. 13 not to be subjected to the death penalty, which admits of no derogation and applies in all circumstances, ranks along with the rights in Articles 2 and 3 as a fundamental right, enshrining one of the basic values of the democratic societies making up the Council of Europe. As such, its provisions must be strictly construed (see, mutatis mutandis, Soering, cited above, § 88, and McCann and Others v. the United Kingdom, 27 September 1995, § 147, Series A no. 324). ( b ) The effect of signature and ratification of Protocol No. 13 on the interpretation of Articles 2 and 3 of the Convention 119. In Öcalan ( cited above ), the Court examined whether the practice of the Contracting States could be taken as establishing an agreement to abrogate the exception in Article 2 § 1 permitting capital punishment in certain conditions. It noted, with reference to § 103 of the Soering judgment ( cited above ), that if Article 2 were to be read as permitting capital punishment, Article 3 could not be interpreted as prohibiting it, since that would nullify the clear wording of Article 2 § 1. The Grand Chamber in Öcalan (§ 163) agreed on this point with the Chamber, which had held as follows: “... 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 1953 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. 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.” Having thus concluded that the use of the death penalty except in time of war had become an unacceptable form of punishment, the Grand Chamber in Öcalan went on to examine the position as regards capital punishment in all circumstances: “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.” 120. It can be seen, therefore, that the Grand Chamber in Öcalan did not exclude that Article 2 had already been amended so as to remove the exception permitting the death penalty. Moreover, as noted above, the position has evolved since then. All but two of the member States have now signed Protocol No. 13 and all but three of the States which have signed it have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances. Against this background, the Court does not consider that the wording of the second sentence of Article 2 § 1 continues to act as a bar to its interpreting the words “inhuman or degrading treatment or punishment” in Article 3 as including the death penalty ( compare Soering, cited above, §§ 102-04). 121. In accordance with its constant 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 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 Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In considering whether a punishment or treatment was “degrading” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see A. and Others v. the United Kingdom [GC], no. 3455/05, § 127, ECHR 2009 and the authorities cited therein). 122. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. It 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. As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim ’ s conduct, the nature of any offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 (see Saadi v. Italy [GC], no. 37201/06, § 127, ECHR 2008 ). ( c ) State responsibility under the Convention for the imposition and execution of the death penalty in another State 123. The Court further reiterates 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 (see Saadi, cited above, § 125). Similarly, Article 2 of the Convention and Article 1 of Protocol No. 13 prohibit the extradition or deportation of an individual to another State where substantial grounds have been shown for believing that he or she would face a real risk of being subjected to the death penalty there ( see Hakizimana v. Sweden (dec.), no. 37913/05, 27 March 2008; and, mutatis mutandis, Soering, cited above, § 111; S.R. v. Sweden (dec.), no. 62806/00, 23 April 2002; Ismaili v. Germany (dec.), no. 58128/00, 15 March 2001; Bader and Kanbor, cited above, § 42; and Kaboulov v. Ukraine, no. 41015/04, § 99, 19 November 2009 ). 124. 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 the above Articles. 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 Saadi, cited above, § 126). 125. 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 ( ibid., § 130). 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 ( ibid., § 133). Where the expulsion or transfer has already taken place at the date of the Court ’ s examination, it is not precluded, however, from having regard to information which comes to light subsequently (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107(2), Series A no. 215; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005 ‑ I; and, mutatis mutandis, A. and Others, cited above, § 177 ). ( d ) The extent to which conflicting international obligations affect responsibility under the Convention 126. The Government contended that they were under an obligation under international law to surrender the applicants to the Iraqi authorities. In this connection, the Court notes that the Convention must be interpreted in the light of the rules set out in the Vienna Convention on the Law of Treaties of 1969, of which Article 31 § 3 (c) indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. More generally, the Court reiterates that the principles underlying the Convention cannot be interpreted and applied in a vacuum. The Convention should be interpreted as far as possible in harmony with other principles of international law of which it forms part ( see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 55-57, ECHR 2001 ‑ XII ). The Court has also long recognised the importance of international cooperation (see Al-Adsani, cited above, § 54, and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 150, ECHR 2005 ‑ VI ). 127. The Court must in addition have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Its approach must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, Soering, cited above, § 87; Loizidou v. Turkey ( preliminary objections), 23 March 1995, § 72, Series A no. 310; and McCann and Others, cited above, § 146). 128. It has been accepted that a Contracting Party is responsible under Article 1 of the Convention for all acts and omissions of its organs regardless of whether the act or omission in question was a consequence of domestic law or of the necessity to comply with international legal obligations. Article 1 makes no distinction as to the type of rule or measure concerned and does not exclude any part of a Contracting Party ’ s “jurisdiction” from scrutiny under the Convention ( see Bosphorus, cited above, § 153 ). The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention ( ibid., § 154 and the cases cited therein ). For example, in Soering ( cited above ), the obligation under Article 3 of the Convention not to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture or inhuman or degrading treatment or punishment was held to override the United Kingdom ’ s obligations under the Extradition Treaty it had concluded with the United States in 1972. 2. Application of the above principles to the present case 129. The Court reiterates that the first applicant was arrested by soldiers from the United Kingdom contingent of the MNF on 30 April 2003 and the second applicant on 21 November 2003. They were held in British -run detention facilities as security internees. However, from an early stage in the applicants ’ internment the British authorities were investigating their involvement in the murders of Staff Sergeant Cullingworth and Sapper Allsopp (see paragraphs 40-43 above). 130. On 28 June 2004 the occupation of Iraq came to an end. In August 2004 the death penalty was reintroduced into the Iraqi Penal Code in respect of a number of offences, including murder (see paragraph 23 above). 131. On 16 December 2005 the United Kingdom authorities referred the applicants ’ cases to the Iraqi criminal courts (see paragraph 45 above). On 18 May 2006 the Basra Criminal Court made an order authorising their continued detention by British forces and on 21 May 2006 the United Kingdom authorities decided to reclassify the applicants as “criminal detainees” (see paragraph 46 above). From 2 7 December 2007 the IHT requested that the applicants be transferred to its custody to stand trial on charges carrying the death penalty (see paragraph 48 above). On 31 December 2008 the United Kingdom authorities physically transferred the applicants to the custody of the Iraqi police (see paragraph 80 above). 132. The applicants ’ trial before the IHT commenced on 11 May 2009. They were originally charged with killing the two British soldiers when they had clearly surrendered, an offence carrying a maximum penalty of the death sentence. On 21 July 2009, following the close of evidence, the original capital charges against the applicants were withdrawn and an offence which did not carry the death penalty was substituted. A week later an additional charge was added, which could in principle have been punishable by death. In January 2010 the Court of Cassation decided to remit the case for renewed investigation and retrial (see paragraphs 82- 89 above). 133. The Court notes that the Divisional Court and the Court of Appeal concluded, shortly before the physical transfer took place, that substantial grounds had been shown for believing there to be a real risk of the applicants ’ being condemned to the death penalty and executed (see paragraphs 60 and 70 above). In coming to this conclusion, the domestic courts took into account the facts that the death penalty was available for the offences with which the applicants were charged; that there was clear evidence that persons convicted of such offences were liable in practice to be sentenced to death; that no assurance that the death penalty would not be applied had been given by the Iraqi authorities; and that the other factors relied on by the Government, for example the letter from the family of one of the victims requesting clemency, were not sufficiently cogent nor certain to negate the risk. 134. The Court, having itself examined the evidence, sees no reason to depart from the findings of the national courts on this issue. Moreover, it considers that, despite the additional letter submitted by the United Kingdom Government to the IHT in July 2009, informing the IHT that the family of the other murdered soldier did not want the death penalty to be imposed (see paragraph 86 above), the Iraqi authorities have still not given any binding assurance that it will not. The applicants ’ case has recently been remitted for reinvestigation and retrial and it is impossible to predict the outcome. In these circumstances the Court does not consider that the risk of the applicants ’ being executed has been entirely dispelled. 135. Moreover, it considers that, given the nature of the evidence and allegations against the applicants, from August 2004, when the death penalty was reintroduced in Iraq, there were substantial grounds for believing that they would run a real risk of being sentenced to death if tried and convicted by an Iraqi court. Indeed, the minute of the meeting of the DIRC of 27 July 2004 recorded that the United Kingdom Secretary of State was already at that stage concerned about the death penalty (see paragraph 44 above). Similar expressions of concern were reported in the minutes of 31 August 2004 and 31 January and 3 May 2005. 136. The applicants must themselves have been aware of this risk. The Court considers that, at least from May 2006, when the Iraqi criminal courts accepted jurisdiction over their cases, the applicants were subjected to a well-founded fear of execution. It is reasonable to assume that this fear caused the applicants intense psychological suffering. It must have continued throughout their appeals to the Iraqi courts against the referral of their cases to the IHT (see paragraph 47 above) and the refusal of the English domestic courts to prevent their physical transfer to the Iraqi authorities. It undoubtedly intensified around 31 December 2008, when the risk became more concrete and the transfer took place, and continues to this day. 137. Protocol No. 13 came into force in respect of the United Kingdom on 1 February 2004. The Court considers that, from that date at the latest, the respondent State ’ s obligations under Article 2 of the Convention and Article 1 of Protocol No. 13 dictated that it should not enter into any arrangement or agreement which involved it in detaining individuals with a view to transferring them to stand trial on capital charges or in any other way subjecting individuals within its jurisdiction to a real risk of being sentenced to the death penalty and executed. Moreover, it considers that the applicants ’ well-founded fear of being executed by the Iraqi authorities during the period May 2006 to July 2009 must have given rise to a significant degree of mental suffering and that to subject them to such suffering constituted inhuman treatment within the meaning of Article 3 of the Convention. 138. The Government have contended that, in accordance with well - established principles of international law, they had no option but to respect Iraqi sovereignty and transfer the applicants, who were Iraqi nationals held on Iraqi territory, to the custody of the Iraqi courts when so requested. In this respect, however, the Court refers to its case-law, summarised in paragraphs 12 6 to 1 2 8 above, to the effect that it is not open to a Contracting State to enter into an agreement with another State which conflicts with its obligations under the Convention. This principle carries all the more force in the present case given the absolute and fundamental nature of the right not to be subjected to the death penalty and the grave and irreversible harm risked by the applicants. 139. The domestic courts considered themselves bound by the principles of international law concerning “ diplomatic asylum ”, as applied by the Court of Appeal in the R(B) case (see paragraphs 58, 72 and 9 4 above), to find that the duty to provide refuge extraterritorially could operate only where there was clear evidence that the territorial State intended to subject the individual to treatment so harsh as to constitute a crime against humanity. It is not necessary in this judgment for the Court to examine generally the principles of “ diplomatic asylum ” or to establish when, if ever, the surrender of an individual by a Contracting State ’ s diplomatic or consular agents could give rise to a violation of the Convention. It merely notes in passing that the Commission in its admissibility decision in M. v. Denmark, no. 17392/90, Commission decision of 14 October 1992, Decisions and Reports 73, p. 193, appeared to assume, albeit without detailed reasoning, that the Soering principle against refoulement would apply where an individual sought and was refused refuge in a Contracting State ’ s embassy. 140. The Court considers in any event that the facts of the present case are such as clearly to distinguish it from a situation of “diplomatic asylum”, for the following reasons. Diplomatic and consular premises have a particular status under international law. When a State sets up a diplomatic mission it agrees to respect the laws of the territorial State and not to interfere in its internal affairs (Vienna Convention on Diplomatic Relations of 1961, Article 41 § 1 : see paragraph 93 above ); this is one of the conditions on which the territorial State consents to the establishment of the mission. Thus, when an individual seeks refuge at an embassy, the obligations owed by the sending State to the territorial State are known and apply ab initio ( although there may be other conflicting obligations, for example under the Convention ). In contrast, in the present case, the applicants did not choose to seek refuge with the authorities of the United Kingdom; instead, the respondent State ’ s armed forces, having entered Iraq, took active steps to bring the applicants within the United Kingdom ’ s jurisdiction, by arresting them and holding them in British -run detention facilities (see Al-Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 84-89, 30 June 2009). In these circumstances, the Court considers that the respondent State was under a paramount obligation to ensure that the arrest and detention did not end in a manner which would breach the applicants ’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. 141. In any event, the Government have not satisfied the Court that the need to secure the applicants ’ rights under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13 inevitably required them to act in contravention of Iraqi sovereignty. It does not appear from the evidence before the Court that, despite the concerns voiced at ministerial level as early as July 2004 about the risk of the imposition of the death penalty if the applicants were tried by the Iraqi courts (see paragraph 44 above), any real attempt was made to negotiate with the Iraqi authorities to prevent it. According to the evidence of Mr Watkins before the Divisional Court and Court of Appeal (see paragraphs 56 and 66 above), it was the judgment of the United Kingdom Government towards the end of 2008 that it would not be politic even to raise with the Iraqi government the possibility of removing the applicants to the United Kingdom or continuing to detain them in Iraq after 31 December 2008. However, it would appear from the minute of the DIRC meeting of 28 September 2004 that the Iraqi prosecutors initially had “cold feet” about bringing the case themselves, because the matter was “so high profile” (see paragraph 44 above). This could have provided an opportunity to seek the consent of the Iraqi government to an alternative arrangement involving, for example, the applicants being tried by a United Kingdom court, either in Iraq or in the United Kingdom. It does not appear that any such solution was ever sought. 142. The Government accept, moreover, that no attempt was made, during the negotiations for the United Kingdom -Iraq MOU of 8 November 2004 or at any other time, to seek a general assurance from the Iraqi authorities that, in the light of the United Kingdom ’ s binding obligations under the Convention and Protocol No. 13, no individual transferred from the physical custody of the British armed forces could be subjected to the death penalty. Similarly, the Government do not contend that, before the decision was made to refer the applicants ’ cases to the Iraqi courts, any request was made to the Iraqi authorities for a binding assurance that, if the cases were referred, the applicants would not be at risk of capital punishment. Indeed, it would appear that it was only after the applicants had lodged an application for judicial review before the Divisional Court that a first effort was made to seek clemency on their behalf. However, as the domestic courts found, no binding guarantee was obtained. 143. In summary, therefore, the Court considers that, in the absence of any such binding assurance, the referral of the applicants ’ cases to the Iraqi courts and their physical transfer to the custody of the Iraqi authorities failed to take proper account of the United Kingdom ’ s obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 1 3 since, throughout the period in question, there were substantial grounds for believing that the applicants would face a real risk of being sentenced to death and executed. 144. The outcome of the applicants ’ case before the IHT is currently uncertain. While the applicants remain at real risk of execution since their case has been remitted for reinvestigation, it cannot at the present time be predicted whether or not they will be retried on charges carrying the death penalty, convicted, sentenced to death and executed. Whatever the eventual result, however, it is the case that through the actions and inaction of the United Kingdom authorities the applicants have been subjected, since at least May 2006, to the fear of execution by the Iraqi authorities. The Court has held above that causing the applicants psychological suffering of this nature and degree constituted inhuman treatment. It follows that there has been a violation of Article 3 of the Convention. 145. In the circumstances, and in view of the above finding, the Court does not consider it necessary to decide whether there have also been violations of the applicants ’ rights under Article 2 of the Convention and Article 1 of Protocol No. 13. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 146. The applicants alleged that, at the moment they were transferred to Iraqi custody, there were substantial grounds for believing that they were at a real risk of being subjected to an unfair trial before the IHT in breach of their rights under Article 6 § 1 of the Convention, which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The Government denied that there was any risk of an unfair trial. A. The parties ’ submissions 147. The applicants alleged that the fairness of trials before the IHT had been the subject of widespread and ongoing criticism from numerous non-governmental organisations and international bodies, focusing both on the IHT ’ s lack of independence and its general ability to conduct a trial meeting even the most basic international requirements. They referred to reports by the International Center for Transitional Justice ( Dujail: Trial and Error? (November 2006)); the United Nations Human Rights Council ’ s Working Group on Arbitrary Detentions (Opinion 31/2006, in relation to the trial and detention of Saddam Hussein); Human Rights Watch ( The Poisoned Chalice: A Human Rights Watch Briefing Paper on the Decision of the Iraqi High Tribunal in the Dujail Case (June 2007 )); and the statements of their expert witness who had given evidence before the domestic courts (see paragraph 59 above). With reference to these reports, the applicants alleged in particular that IHT personnel and witnesses appearing before it were subject to extreme security risks, including the risk of assassination and that defendants were left without effective representation because of the risk to counsel. The applicants alleged that there was no tradition of judicial independence in Iraq and that the judges of the IHT were subject to continual political interference. These shortcomings explained the conviction rate of approximately 80% of accused persons tried before the IHT. 148. The Government submitted that there was no real risk that the applicants would be submitted to a flagrant denial of justice, as the Divisional Court and Court of Appeal correctly decided on the basis of the extensive and recent evidence before them. B. The Court ’ s assessment 149. In Mamatkulov and Askarov ( cited above, §§ 90 and 91 ), the Grand Chamber confirmed the principle first laid down in Soering ( cited above, § 113 ), that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of a fair trial in the requesting country. As with cases under Article 3, the Court considers that, where the removal has already taken place, the existence of the risk of a flagrant breach of Article 6 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 removal, although the Court is not precluded from having regard to information which comes to light subsequently (see paragraph 125 above). 150. However, in the present case the Court accepts the national courts ’ finding that, at the date of transfer, it was not established that the applicants would risk a flagrantly unfair trial before the IHT. Now that the trial has taken place, there is no evidence before the Court to cast doubt on that assessment. It follows that the Court finds no violation of Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLES 13 AND 34 OF THE CONVENTION 151. The applicants contended that their physical transfer to the Iraqi authorities, in breach of the Court ’ s indication under Rule 39 of the Rules of Court, gave rise to a violation of 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.” Furthermore, since at the time the House of Lords had not yet had the opportunity to determine their appeal, the transfer also violated their right to an effective domestic remedy, in breach of Article 13 of the Convention, which states: “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 Government rejected these contentions. A. The parties ’ submissions 1. The applicants 152. The applicants submitted that the consequences of transferring them to the Iraqi authorities in breach of the Court ’ s Rule 39 indication could not have been more serious, both as to their right to individual petition and their right to an effective remedy. Both this Court ’ s judgment in Paladi v. Moldova ( [GC], no. 39806/05, § 92, 10 March 2009 ) and the judgment of the International Court of Justice (ICJ) in LaGrand (judgment of 27 June 2001, ICJ Reports 2001, p. 466 ), on which the Government relied, made it clear that the obligation was to take all reasonable steps to comply with an indication of interim measures. Nonetheless, the Government had conceded that at no stage did they make any approach to the Iraqi authorities to investigate the possibility of detaining the applicants at the British detention facility at Basra for the matter of the few weeks or months that it would take for the legal issues to be resolved. Moreover, the Government had failed to inform either the Court or the applicants ’ representatives on the morning of 31 December 2008 that they did not intend to comply with the Rule 39 indication. The Court was informed only when the transfer had taken place. 153. They claimed that the Government had been fully aware that the House of Lords did not have provision for vacation business and that the earliest a petition for leave to appeal and interim relief could be lodged was 12 January 2009. In transferring the applicants before that date, the Government knew that their right to seek such leave and thus their chance of an effective domestic remedy would be vitiated. 2. The Government 154. The Court had held in Paladi ( cited above ), that it was for a respondent Government to demonstrate that there was an objective impediment which prevented its compliance with an interim measure indicated under Rule 39 of the Rules of Court. In the Government ’ s submission, the question whether there was such an objective impediment had to be assessed in each case with reference to the legal or factual scenario. As the Court had confirmed in its case-law, the Convention had to be interpreted in the light of and in harmony with other principles of international law. This was no less the case when it came to the interpretation of Article 34 and Rule 39. Indeed, much of the reasoning behind the Court ’ s decision in Mamatkulov and Askarov ( cited above ), as to the binding nature of Rule 39 indications was based on consideration of other principles of international law, including the judgment of the ICJ in LaGrand, cited above. In that judgment, in a passage cited by the Court in Paladi, the ICJ emphasised that its Order of provisional measures “did not require the United States to exercise powers it did not have”, although it did impose the obligation to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the conclusion of the proceedings. 155. In the present case, the Rule 39 indication should not be interpreted as requiring the Contracting State to exercise powers it did not have, including notably the power to continue to detain the applicants after midnight on 31 December 2008. An indication under Rule 39 could not require a Contracting State to violate the law and sovereignty of a non-Contracting State. This was, indeed, an exceptional case. If it was correct that the relevant acts fell within the jurisdiction of the United Kingdom, the case was by definition “exceptional” in terms of the extraterritorial application of the Convention (see Banković, cited above, § 74). Further, the exceptional nature of the case derived specifically from the fact that the United Kingdom was acting or being required to act outside its own territory. It could not comply with the Rule 39 indication precisely because it was on the territory of another State. The Government were proud of their long history of cooperation with the Court and their compliance with previous Rule 39 indications. They had failed to comply with the indication in this case only because there was an objective impediment preventing compliance. 156. The Government dismissed as irrelevant the submissions by the third parties to the effect that the obligation to comply with a Rule 39 indication was not discharged by a competing international obligation (see paragraphs 158-59 below). The present case did not involve conflicting obligations where a State could choose to act either in accordance with treaty A or treaty B. The simple point, which the interveners did not address, was that the Government could not comply with the Rule 39 indication; they did not have the relevant powers nor any discretion as to how to act. The applicants alleged that the Government could have done more, but this was to ignore the extreme sensitivity of the important and urgent negotiations that were taking place with Iraq at that time (see paragraphs 56 and 66 above). 157. In the Government ’ s submission, the complaint under Article 13 was unfounded since the applicants did not seek leave to appeal to the House of Lords until 9 February 2009. At the time of the transfer there were no domestic proceedings pending. 3. The third parties 158. The Equality and Human Rights Commission submitted that there could be no principled exception to the principle in Mamatkulov and Askarov ( cited above ), that a State ’ s failure to comply with an interim measure would be a violation of Article 34, where the State ’ s failure was based on an international - law obligation (assuming that such an obligation had been identified and existed). The rejection of such an exception flowed from the Court ’ s case-law regarding conflicts between international - law obligations and substantive Convention obligations and also from the rationale behind the Mamatkulov and Askarov rule, which was the need to protect the practical effectiveness of the Convention system for individual applicants. 159. The group of interveners (see paragraph 6 above) reasoned that, given the purpose and significance of interim measures in protecting Convention rights, the obligation under Article 34 to abide by these measures should be strictly and consistently applied. A State had to take all steps available to it to comply with the order and, in deciding whether and to what extent to comply with interim measures, could not substitute its own judgment for that of the Court. The judgments in Soering and Mamatkulov and Askarov demonstrated that a competing international obligation did not permit the disregard of interim measures. B. The Court ’ s assessment 1. General principles 160. Interim measures under Rule 39 of the Rules of Court are indicated only in limited spheres. In practice, the Court will make such an indication only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention (see Mamatkulov and Askarov, cited above, § 104). Under the Convention system, interim measures play a vital role in avoiding irreversible situations that would prevent the Court from properly examining the application and, where appropriate, securing to the applicant the practical and effective benefit of the Convention rights asserted. Accordingly, in these conditions a failure by a respondent State to comply with interim measures will undermine the effectiveness of the right of individual application guaranteed by Article 34 and the State ’ s formal undertaking in Article 1 to protect the rights and freedoms set forth in the Convention ( ibid., § 125). 161. Article 34 will be breached if the authorities of a Contracting State fail to take all steps which could reasonably have been taken in order to comply with the interim measure indicated by the Court ( see Paladi, cited above, § 88). 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 re-examine whether its decision to apply interim measures was correct. It is for the respondent Government to demonstrate to the Court that the interim measure was complied with or, in an exceptional case, that there was an objective impediment which prevented compliance and that the Government took all reasonable steps to remove the impediment and to keep the Court informed about the situation ( ibid., § 92). 2. Application of the above principles to the present case 162. As stated above, the Court ’ s approach in interpreting the Convention must be guided by the fact that its object and purpose 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 has found that the decisions of the United Kingdom authorities to refer the applicants ’ cases to the Iraqi courts in December 2005 and to transfer them physically to Iraqi custody on 31 December 2008, without having first received any binding assurance that they would not be subjected to the death penalty, put them at real risk of being executed. It has further found that, as a matter of principle, it was not open to the respondent State to enter into an agreement or arrangement with another State which conflicted with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 13. Finally, it has found that the Government have failed to establish that there were no realistic or practicable means available to them by which to safeguard the applicants ’ fundamental human rights. In these circumstances, the “objective impediment” claimed by the Government, namely the absence, on 31 December 2008, of any available course of action consistent with respect for Iraqi sovereignty other than the transfer of the applicants, was of the respondent State ’ s own making. 163. Moreover, the Government have not satisfied the Court that they took all reasonable steps, or indeed any steps, to seek to comply with the Rule 39 indication. They have not informed the Court, for example, of any attempt to explain the situation to the Iraqi authorities and to reach a temporary solution which would have safeguarded the applicants ’ rights until the Court had completed its examination. 164. It is true that from June 2008 the Government began to make approaches to the Iraqi authorities, initially to ascertain from the President of the IHT what steps would be effective under Iraqi law and practice to reduce the risk of the applicants receiving the death sentence (see paragraphs 50-54 above). Subsequently, in July 2008 the Government contacted the Iraqi prosecutors and requested them to inform the IHT that the Government were opposed to the death penalty and that neither of the families of the two murdered soldiers wished it to be imposed (see paragraph 86 above). These contacts may or may not have contributed to the IHT ’ s decisions to amend the charges against the applicants (see paragraphs 86-88 above); this is not a matter on which the Court is able to speculate. However, as the domestic courts also found, the Government ’ s approaches to the Iraqi authorities prior to the transfer of the applicants on 31 December 2008 were not sufficient to secure any binding assurance that the death penalty would not be applied and the applicants remained at real risk when the United Kingdom decided not to comply with the Court ’ s indication under Rule 39. The Government ’ s efforts in 2009 to persuade the Iraqi authorities not to use the death penalty came after the applicants had left United Kingdom jurisdiction and therefore at a time when the United Kingdom authorities had lost any real and certain power to secure their safety. Moreover, to date no binding assurance that the death penalty will not be applied has been given and the applicants ’ fate remains uncertain. 165. In conclusion, the Court does not consider that the authorities of the Contracting State took all steps which could reasonably have been taken in order to comply with the interim measure taken by the Court. The failure to comply with the interim measure and the transfer of the applicants out of the United Kingdom ’ s jurisdiction exposed them to a serious risk of grave and irreparable harm. 166. In the admissibility decision of 30 June 2009 (see paragraph 7 above) the Court joined the question of the admissibility of Article 13 to the merits. Having now examined the merits, and having found in connection with Article 34 that there was no objective justification for the transfer, it reaches the conclusion on similar grounds that the effectiveness of any appeal to the House of Lords was unjustifiably nullified as a result of the Government ’ s transfer of the applicants to the Iraqi authorities. The Court therefore finds the complaint under Article 13 admissible and it finds violations of Articles 13 and 34 of the Convention. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 167. 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.” 168. The applicants asked the Court to order the Government to take a number of measures which might assist in mitigating the damage caused by their transfer to Iraqi custody. In particular, the applicants requested the Court to order the Government to use their best endeavours to secure by diplomatic representations the applicants ’ immediate return to United Kingdom custody. Further or alternatively, the Government should be ordered to use their best endeavours to ensure that the applicants received a fair trial before the IHT, were enabled to remain in contact with their English legal representatives and were not sentenced to the death penalty if convicted. They referred, inter alia, to Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, § 490, ECHR 2004-VII) where the Court ordered the respondent States to take every measure to put an end to the arbitrary detention of the applicants still detained and to secure their immediate release. 169. The Government submitted that this was not a case permitting of restitutio in integrum. The applicants were in Iraqi custody. The Government had no means whatsoever of securing their return to the custody of British forces and no power to detain them in Iraq even if they were returned. The judgment of those involved in negotiating with Iraq prior to the transfer was that there was no prospect of the Iraqi authorities agreeing to the applicants ’ continued detention by British forces (see paragraphs 56 and 66 above). Careful further consideration had been given to these matters and it was the Government ’ s considered view that the diplomatic representations sought would be inappropriate, could harm bilateral relations and would be ineffective. Likewise, it was the Government ’ s considered view that it would not be appropriate to make the further representations sought as to the full and continuing cooperation of the Iraqi government, and in particular the IHT, with the United Kingdom Government, as regards access by the applicants to their representatives in the United Kingdom and the IHT ’ s manner of operating. 170. The Court notes that where it finds a violation, the respondent State has a legal obligation under Article 46 of the Convention not just to pay those concerned any sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. The respondent State remains free, subject to monitoring by the Committee of Ministers, 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 (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II; and Ilaşcu and Others, cited above, § 490). 171. In the present case, the Court has found that through the actions and inaction of the United Kingdom authorities the applicants have been subjected to mental suffering caused by the fear of execution amounting to inhuman treatment within the meaning of Article 3. While the outcome of the proceedings before the IHT remains uncertain, that suffering continues. For the Court, compliance with their obligations under Article 3 of the Convention requires the Government to seek to put an end to the applicants ’ suffering as soon as possible, by taking all possible steps to obtain an assurance from the Iraqi authorities that they will not be subjected to the death penalty. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 172. Article 41 of the Convention provides as follows: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 173. The applicants claimed that they were entitled to a substantial award in respect of non-pecuniary damage, given the fundamental nature of the rights that had been violated and the United Kingdom ’ s failure to comply with the Rule 39 indication. They submitted that there was no comparable case, but in the light of awards made in cases under Article 2 involving loss of life caused or contributed to by the State, they were each entitled to compensation in the region of 50,000 pounds sterling (GBP) for exposure to a real risk of the death penalty, together with a further GBP 25,000 in respect of the breaches of Articles 13 and 34. 174. The Government submitted that, in the event that the Court found a violation, that finding would be sufficient just satisfaction. They denied that the applicants were suffering from fear and distress and referred to the report of the Provost Marshall, the British army officer responsible for conducting inspections of British overseas military detention facilities (see also paragraph 61 above), who had visited the applicants in Rusafa Prison on 24 April 2008 and found that they appeared healthy and looked well. Furthermore, it would be inappropriate to award compensation where the damages claimed arose out of a situation where the applicants had been transferred into the custody of the authorities of a host State for investigation and trial for alleged war crimes, in accordance with international law. The sums sought were in any event excessive. The cases relied on by the applicants had involved awards of damages to a relative in respect of an actual killing. 175. In all the circumstances of the present case, the Court considers that the findings of a violation of Articles 3, 13 and 34 and the indication made under Article 46 constitute sufficient just satisfaction for the non-pecuniary damage suffered by the applicants. B. Costs and expenses 176. The applicants claimed a total of GBP 48,131.58 in respect of the costs and expenses of bringing the application before the Court, inclusive of value-added tax (VAT) at 15%. They claimed for a total of 377 hours and 10 minutes ’ work by legal advisers, including 189 hours and 24 minutes spent by solicitors, charged at GBP 180 per hour for the senior solicitor and GBP 130 per hour for the junior solicitor; 20 hours ’ work by one QC and 5 hours ’ work by another, charged at GBP 350 per hour; 5 hours ’ work by a second QC; and a total of 162 hours and 45 minutes spent on the application by three other barristers. 177. The Government acknowledged that the application raised a number of complex issues. Nonetheless they considered that the total time spent by the applicants ’ legal team was excessive and that the use of eight different lawyers must have contributed to duplication and extra costs. They submitted that a total figure of 250 hours would be more reasonable. Furthermore, the hourly sum of GBP 350 for two of the counsel was too high; an hourly rate of GBP 250 would be more appropriate. 178. In the light of the complex issues raised by this case and based on its practice in comparable cases, the Court awards 4 0 ,000 euros in respect of costs and expenses, together with any tax that may be chargeable to the applicants. C. Default interest 179. 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 death penalty as inhuman and degrading treatment: The Court emphasised that although 60 years ago, when the European Convention on Human Rights was drafted, the death penalty had not violated international standards, there had been a subsequent evolution towards its complete abolition, in law and in practice, within all 47 Council of Europe Member States / States Parties to the Convention. Two Protocols to the Convention had entered into force, abolishing the death penalty in time of peace (Protocol No. 6) and in all circumstances (Protocol No. 13), and the United Kingdom had ratified them both. All but two Convention States had signed Protocol No. 13 and all but three States which had signed it had ratified it. That demonstrated that Article 2 of the Convention had been amended so as to prohibit the death penalty in all circumstances. Consequently, the Court held that the death penalty, which involved the deliberate and premeditated destruction of a human being by the State authorities causing physical pain and intense psychological suffering as a result of the foreknowledge of death, could be considered inhuman and degrading and, as such, contrary to Article 3 of the Convention. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further observed in this case that the UK Government were required to seek to put an end to the suffering the fear of execution caused the applicants as soon as possible, by taking all possible steps to obtain an assurance from the Iraqi authorities that they would not be subjected to the death penalty. |
1,016 | Military presence | 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 was not divested of its jurisdiction solely because it had accepted the operational control of a United Kingdom officer. As was clear from a letter by the Ministers of Foreign Affairs and of Defence to the Parliament of the Netherlands, of June 2003, concerning the participation of Netherlands forces in the Stabilisation Force in Iraq, the Netherlands had retained full command over its military personnel in Iraq. It also followed from an excerpt of the Memorandum of Understanding for Multinational Division South-East, to which the Netherlands Government had given the Court access, that the drawing up of distinct rules on the use of force had remained in the domain of |
122 | Harassment by teachers | RELEVANT LEGAL FRAMEWORK Relevant domestic lawConstitution Constitution Constitution 30. The Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990, with further amendments) prohibits any form of ill-treatment (Article 23). It also guarantees the right to respect for and legal protection of private life and dignity (Article 35). The Constitution obliges the State to protect children and youth (Article 63) and also provides that “[e]veryone shall have the duty to protect children ...” (Article 65). 31. The relevant part of section 62 of the Constitutional Court Act, and the related Constitutional Court’s case-law, are set out in Remetin v. Croatia (no. 29525/10, §§ 58 and 64-67, 11 December 2012), and Pavlović and Others v. Croatia (no. 13274/11, §§ 17-21, 2 April 2015). Criminal law provisions 32. The Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997, with further amendments), as applicable at the relevant time, in Article 213 proscribed neglect and ill-treatment of a child or minor. This related, inter alia, to a severe neglecting of duties in education (paragraph 1) and direct abuse (paragraph 2). The aggravating forms of the offence, relating to serious bodily injury or sever impairment of health resulting from the neglecting of duties or abuse, were proscribed in paragraph 3. 33. Under the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette, nos. 152/2008, with further amendments) there is no possibility of a judicial review of the decision not to prosecute. However, if the State Attorney has declined to prosecute, the victim has the right to take over the prosecution (as a “subsidiary prosecutor”) and bring a case before the relevant criminal court (Articles 55 and 58). Supervision of the education system 34. The relevant Act on Education in Primary and Secondary Schools ( Zakon o odgoju i obrazovanju u osnovnoj i srednjoj školi, Official Gazette no. 87/2008, with further amendments) provided for the right of individual complaint as one of the basic rights of students (section 61(1)). It also required schools to take necessary measures for the protection of students’ well-being (section 67). Section 70 provided for the active protection of students from any form of harassment or ill-treatment and provided for the duty of school authorities to report such occurrences to the competent authorities (section 70). Under sections 138 and 149, the Act envisaged supervision of the school education system through education inspection and professional pedagogical supervision. 35. Education inspection was to be carried out by the education inspectorate, which is one of the Ministry’s organisational units. Under section 11(1.13) of the relevant Education Inspection Act ( Zakon o prosvjetnoj inspekciji, Official Gazette no. 61/2011, with further amendments), one of the central duties of education inspection was to control the manner in which educational staff in schools complied with their duties and responsibilities towards students. In cases of ill-treatment or inadequate behaviour towards a student, an education inspector could question the student (section 15). If professional pedagogical supervision was needed prior to the adoption of a decision by the education inspectorate, a further assessment could be commissioned. If the results of the inspection provided a sufficient basis for a decision, the education inspector could order the adoption of relevant measures for the protection of students, as well as institute minor offence proceedings, or, in the event of findings relating to criminal conduct, refer the case to the competent prosecuting authorities (sections 23-25). 36. The applicable Act on Professional Pedagogical Supervision ( Zakon o stručno-pedagoškom nadzoru, Official Gazette no. 73/1997) envisages professional pedagogical supervision as an assessment of the performance of teaching tasks, and authorises a supervising official to indicate the measures which need to be taken for the elimination of identified irregularities and omissions (sections 8-12). 37. The Education Agency Act ( Zakon o Agenciji za odgoj i obrazovanje, Official Gazette no. 85/2006) establishes the Education Agency as the competent body to carry out professional pedagogical supervision (section 4(3)). Under section 5, it obliges school authorities to provide relevant documents and cooperate in the supervision process. Civil Obligations Act 38. The Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 35/2005, with further amendments) provides for a possibility of instituting the civil proceedings to protect the rights of personality, which include, inter alia, the right to physical and mental health and dignity (sections 19, 1046, 1048 and 1100). International law and materialsUnited Nations United Nations United Nations 39. The Convention on the Rights of the Child, 20 November 1989, requires that in all actions concerning children, the best interests of the child must be a primary consideration (Article 3). With regard to measures of school discipline, it provides that States Parties must take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with that Convention (Article 28(2)). 40. The report by the Secretary General to the General Assembly on the promotion and protection of the rights of children of 29 August 2006 (A/61/299) identified violence perpetrated by teachers and other school staff, which also includes humiliating forms of psychological punishment, as one of the issues requiring a proper social reaction (paragraph 50). It stressed that those who oversee and work in educational settings have a duty to provide safe environments which support and promote children’s dignity and development. 41. With regard to the relevant measures which should be adopted, the report made the following recommendations: “98. I urge States to prohibit all forms of violence against children, in all settings, including all corporal punishment, harmful traditional practices, ... and ... other cruel, inhuman or degrading treatment or punishment, as required by international treaties, ... 105. I recommend that States should build community confidence in the justice system by bringing all perpetrators of violence against children to justice and ensure that they are held accountable through appropriate criminal, civil, administrative and professional proceedings and sanctions. ... 111. ... I recommend that States: (b) Ensure that school principals and teachers use non-violent teaching and learning strategies and adopt classroom management and disciplinary measures that are not based on fear, threats, humiliation or physical force; ...” 42. The Committee on the Rights of the Child, in General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment ( inter alia, Article 19, Article 28 paragraph 2, and Article 37), CRC/C/GC/8 of 2 March 2007, stressed that, in addition to corporal punishment, which is considered to be invariably degrading, there are other non-physical forms of punishment that are also cruel and degrading and thus incompatible with the Convention on the Rights of the Child. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child (paragraph 11). The Committee on the Rights of the Child rejected any justification of violence and humiliation as forms of punishment for children but stressed that this did not mean rejecting the positive concept of discipline (paragraph 13). The Committee further insisted on the distinct nature of children, their initial dependent and developmental state, their unique human potential as well as their vulnerability, which all demanded the need for more, rather than less, legal and other protection from all forms of violence (paragraph 21). The Committee also emphasised that eliminating violent and humiliating punishment of children, through law reform and other necessary measures, was an immediate and unqualified obligation of States (paragraph 22). 43. The United Nations General Assembly adopted a Resolution on the rights of the child, A/RES/62/141, 22 February 2008, which in the relevant part provides: “52. Condemns all forms of violence against children, including ... mental, psychological ... violence ... and other cruel, inhuman or degrading treatment, ... and urges States to strengthen efforts to prevent and protect children from all such violence through a comprehensive approach and to develop a multifaceted and systematic framework, which is integrated into national planning processes, to respond to violence against children; ... 57. Urges all States: ... ( b ) To consider taking appropriate measures to assert the right of children to respect for their human dignity and physical integrity and to prohibit and eliminate any emotional or physical violence or any other humiliating or degrading treatment; ( c ) To give priority attention to the prevention of all forms of violence against children and to addressing its underlying causes, through a systematic, comprehensive and multifaceted approach; ( d ) To protect children from all forms of violence or abuse by all those who work with and for children, including in educational settings ...” 44. In the General comment No. 13 (2011): The right of the child to freedom from all forms of violence, CRC/C/GC/13, 18 April 2011, the Committee on the Rights of the Child stressed that the term “mental violence” encompasses psychological maltreatment, mental abuse, verbal abuse and emotional abuse or neglect, including insults, name-calling, humiliation, belittling, ridiculing and hurting a child’s feelings. The Committee also noted the following (paragraph 17): The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. ‘All forms of physical or mental violence’ does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.” Council of Europe 45. The relevant early Council of Europe materials concerning child protection are summarised in O’Keeffe v. Ireland [GC], no. 35810/09, §§ 91-92, ECHR 2014 (extracts). 46. Further relevant material of the Parliamentary Assembly of the Council of Europe (“PACE”), reaffirmed in Resolution 1803 (2011) on Education against violence at school, includes: Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children; Recommendation 1778 (2007) on child victims: stamping out all forms of violence, exploitation and abuse; and Recommendation 1934 (2010) on child abuse in institutions: ensuring full protection of the victims. 47. In the latter Recommendation, PACE expressed its concerns over the sexual, physical and emotional abuse of children in various institutions, including public and private educational facilities. It therefore urged enhanced protection by adopting legislation to explicitly prohibit all forms of violence against children: physical and mental violence, injury or abuse (including sexual abuse), neglect or negligent treatment, maltreatment or exploitation, in child care institutions, public and private educational institutions, correctional facilities and leisure associations, amongst other institutions. It also stressed the need to criminalise any intentional abuse of a child by a person in a recognised position of trust, authority or influence in relation to the child, and recommended the adoption of legislation providing for ex officio prosecution in all kinds of child abuse cases, based on the principle of the “graded prosecution” of child abuse according to the gravity of offences, which includes measures against all kinds of child abuse (sexual, physical and emotional). Moreover, with regard to the punishment of minors in institutions, the legislative measures are required so as to define as illegal and exclude certain practices which are contrary to their dignity and rights. 48. The Council of Europe Committee of Ministers, in Recommendation CM/Rec(2009)10 on integrated national strategies for the protection of children from violence, also emphasised the following: “Protection against violence All children have the right to protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation ... while in the care of ... any other person who has the care of the child. Prevention The national legal framework should prioritise the prevention of violence and safeguard the rights of the child by taking action, such as: Prohibition of violence The state has an explicit obligation to secure children’s right to protection from all forms of violence, however mild. Appropriate legislative, administrative, social and educational measures should be taken to prohibit all violence against children at all times and in all settings and to render protection to all children within the state’s jurisdiction. Legal defences and authorisations for any form of violence, including for the purposes of correction, discipline or punishment, within or outside families, should be repealed. Prohibition should imperatively cover: ... g. all forms of violence in school; h. ... all other cruel, inhuman or degrading treatment or punishment of children, both physical and psychological ...” 49. Appendix 2 to Recommendation CM/Rec(2009)10 defines the term “psychological violence” as insults, name-calling, ignoring, isolation, rejection, threats, manipulation, emotional indifference, and belittlement, witnessing domestic violence, and other behaviour that can be detrimental to a child’s psychological development and well-being. 50. The Revised European Social Charter, 3 May 1996, provides that with a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the States must undertake all appropriate and necessary measures designed, inter alia, to protect children and young persons against negligence and violence (Article 17). 51. In its practice, the European Committee of Social Rights has held the following ( Association for the Protection of All Children (APPROACH) Ltd. v. Belgium, No. 98/2013, decision on the merits 20 January 2015): “50. In this regard, the Committee recalls its interpretation of Article 17 of the Charter as regards the corporal punishment of children laid down most recently in its decision in World Organisation against Torture (OMCT) v. Portugal, Complaint No. 34/2006, decision on the merits of 5 December 2006, §§19-21: ‘19. To comply with Article 17, states’ domestic law must prohibit and penalize all forms of violence against children that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well-being of children. 20. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. 21. Moreover, states must act with due diligence to ensure that such violence is eliminated in practice.’ 54. Further as regards the case law cited by the Government, the Committee notes the Government has not provided any examples of case-law by superior courts showing that the above-mentioned provisions of the Civil Code have been interpreted as prohibiting all forms of violence against children by parents and ‘other persons’, including for educational purposes.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The applicant complained of harassment by a teacher in a public school and the failure of the domestic authorities to respond effectively to his complaints of harassment. He relied on Articles 3, 8 and 13 of the Convention. 53. The Court finds, being the master of the characterisation to be given in law to the facts of the case (see S.M. v. Croatia [GC], no. 60561/14, § 243, 25 June 2020), that the applicant’s complaints fall to be examined under Article 8. While the complaints of harassment at school may fall to be examined under Article 3 (see, for instance, V.K. v. Russia, no. 68059/13, §§ 171-172, 7 March 2017), the Court notes that the applicant’s allegations of harassment concern verbal abuse by R.V. consisting of three instances in which the latter uttered insults aimed directly or indirectly at the applicant and which all occurred within several days of each other. In such circumstances, having regard to its case-law (see, for instance, R.B. v. Hungary, no. 64602/12, §§ 44-52, 12 April 2016), the Court considers it more appropriate to examine the case from the perspective of the right to respect for private life under Article 8 of the Convention. 54. Article 8, in its 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.” AdmissibilityApplicability of Article 8 of the Convention Applicability of Article 8 of the Convention Applicability of Article 8 of the Convention 55. The Government contended that the conduct of the teacher had not produced any adverse effects on the applicant’s private life, within the meaning of Article 8 of the Convention. 56. While it is not clear whether the Government sought to challenge the applicability of Article 8, this being a matter that goes to the Court’s jurisdiction and which the Court must establish on its own motion (see, for instance, Jeanty v. Belgium, no. 82284/17, § 58, 31 March 2020), it finds it important to note the following. 57. The Court has previously held, in various contexts, that the concept of private life is a broad term not susceptible to exhaustive definition. It includes a person’s physical and psychological integrity (see Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018; see also Remetin v. Croatia, no. 29525/10, § 90, 11 December 2012), and extends to other values such as well-being and dignity, personality development and relations with other human beings (see N.Š. v. Croatia, no. 36908/13, § 95, 10 September 2020, with further references). 58. In order for Article 8 to come into play, however, an attack on a person must attain a certain level of seriousness and be made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 109 in fine, 14 January 2020). However, in cases relating, inter alia, to Article 8 the Court has stressed the relevance of the age of the minors concerned and the need, where their physical and moral welfare is threatened, for children and other vulnerable members of society to benefit from State protection. The need to take account of the vulnerability of minors has also been affirmed at international level (see Wetjen and Others v. Germany, nos. 68125/14 and 72204/14, § 74, 22 March 2018, with further references). 59. Measures taken in the field of education may, in certain circumstances, affect the right to respect for private life, but not every act or measure which may be said to affect adversely the moral integrity of a person necessarily gives rise to such an interference (see Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C). In Costello-Roberts, concerning an instance of corporal punishment at school, the Court found that the treatment complained of by the applicant did not entail adverse effects on the applicant’s physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8. However, since Costello-Roberts, there has been an evolution of social attitudes and legal standards concerning the application of measures of discipline towards children, emphasising the need of protection of children from any form of violence and abuse. This is reflected in various international instruments (see paragraphs 39-51 above) and the Court’s case-law (see, for instance, A, B and C v. Latvia, no. 30808/11, § 152, 31 March 2016; see also V.K. v. Russia, cited above, §§ 171-172, and Wetjen and Others, cited above, §§ 76-78). 60. In the case at issue, there is no doubt that the insults to which the applicant was subjected by R.V. entailed his emotional disturbance, which affected his psychological well-being, dignity and moral integrity (see paragraph 9 above). Moreover, those insults were uttered in the classroom in front of other students and were thus capable of humiliating and belittling the applicant in the eyes of others. It should also be taken into account that the insults in question were particularly disrespectful towards the applicant and were perpetrated by a teacher in a position of authority and control over him. 61. In these circumstances, and taking into consideration that it is in the best interests of the applicant as a child, his classmates and the children in general to be effectively protected from any violence or abuse in educational settings (see paragraphs 58-59 above and 80-82 below), the Court finds that there can be no doubt that the treatment complained of by the applicant falls to be examined under the right to respect for private life, within the meaning of Article 8 of the Convention. Exhaustion of domestic remedies and compliance with the six-month time-limit 62. The Government argued that a constitutional complaint had not been a remedy to be exhausted against a decision rejecting the applicant’s criminal complaint. Thus, by waiting for the Constitutional Court to decide upon his constitutional complaint, the applicant had failed to comply with the relevant six-month time-limit. In the Government’s view, instead of lodging a constitutional complaint, the applicant had been required to institute a private criminal prosecution or avail himself of the opportunity to take over the prosecution against R.V. as a subsidiary prosecutor. By failing to do that, the applicant had failed to exhaust the domestic remedies. 63. The applicant contended that he had instituted a number of proceedings before various domestic authorities concerning his harassment in school, but the relevant authorities had failed to address them properly. Accordingly, he had not been required to use any further remedies as suggested by the Government. The applicant also pointed out that, after the remedies used before the relevant authorities had proved to be ineffective, he had duly lodged a constitutional complaint with the Constitutional Court and brought his application to the Court within the period of six months following the rejection of his constitutional complaint. 64. In many previous cases against Croatia the Court has already examined and rejected similar objections of the respondent Government concerning applicants’ use of the constitutional complaint before the Constitutional Court before bringing their complaints to the Court (see Pavlović and Others v. Croatia, no. 13274/11, §§ 32-38, 2 April 2015; see also Bajić v. Croatia, no. 41108/10, §§ 68-69, 13 November 2012, and Remetin, cited above, §§ 83-84). It sees no reason to hold otherwise in the present case, where in his constitutional complaint the applicant complained of harassment at school and inadequacy of the response of the relevant domestic authorities, including the school, the Ministry, the Agency and the State Attorney’s Office, to his allegations of harassment (see paragraph 27 above). 65. With regard to the Government’s objection that the applicant should have pursued a subsidiary or private criminal prosecution, the Court reiterates that once the applicant had lodged a criminal complaint concerning his alleged harassment, he cannot be required to pursue the subsidiary or private criminal prosecution (compare Škorjanec v. Croatia, no. 25536/14, § 46, 28 March 2017). In any event, it is not clear that a criminal prosecution would be the most appropriate procedural avenue in the circumstances of the present case (see paragraph 93 below). 66. In view of the above, the Court rejects the Government’s objections. Non-significant disadvantage 67. The Government argued that the applicant had not suffered any significant disadvantage, given that his allegations of emotional abuse by R.V. concerned several isolated incidents which had not produced any long ‑ lasting effects on either his emotional well-being or success at school. 68. The applicant maintained his complaints. 69. The Court has already found above that the treatment complained of by the applicant entailed his emotional disturbance and affected his psychological well-being and his moral integrity protected under the concept of private life under Article 8 of the Convention (see paragraph 60 above). In such circumstances, given the context of the case, namely the allegations of harassment in school at the hands of a teacher, where any form of violence, however light, is considered unacceptable, the Court finds that there can be no room for application of the non-significant disadvantage criterion (see paragraphs 81-82 and 91 below). The Government’s objection is therefore rejected. Conclusion 70. The Court notes that the applicant’s complaint of harassment in school by the teacher, and the failure of the domestic authorities to react effectively to his complaint of harassment, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Whether the applicant’s complaint of alleged interference with his final mathematics exam is manifestly ill-founded 71. The Government argued that the applicant’s complaints of adverse effects on his performance in the final exam and his university enrolment were completely unsubstantiated and unfounded. They pointed out that the available material clearly indicated that the applicant’s poor performance on the exam had been the result of his failure to properly follow the instructions for filling in the examination papers. 72. The applicant maintained that he had effectively completed his exam, but a panel (of which R.V. had been a member) had failed to give him a score for it. In his view, this had been as a result of his poor relationship with R.V. 73. The Court notes that the material available to it shows that the final mathematics exam which the applicant took was anonymised, and that his poor performance in the exam related to his failure to properly follow the instructions for filling in the examination papers (see paragraph 11 above). There is no indication that the applicant’s examination papers were tampered with. Accordingly, the Court finds that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. MeritsThe parties’ arguments The parties’ arguments The parties’ arguments (a) The applicant 74. The applicant contended that he had been harassed by R.V. That had been condoned by the relevant school authorities, and the State authorities had not provided an adequate response. In particular, the head teacher and the school psychologist had taken no effective measures to respond to R.V.’s verbal abuse. At a meeting on 14 December 2011 the head teacher had asked his father to drop all the allegations he had made, otherwise the applicant would not be allowed to finish school. His father had then realised that there was a lack of goodwill in relation to resolving the matter and had asked the head teacher to prevent the applicant from being harassed further. 75. Moreover, the applicant argued that the measures which the Ministry and the Agency had taken concerning his allegations of harassment at school had been completely ineffective. Likewise, the State Attorney’s Office had failed to assess properly all the relevant circumstances of the case and had rejected his criminal complaint, despite the medical evidence suggesting that he had suffered severe psychological disturbance as a result of the harassment by R.V. (b) The Government 76. The Government maintained that there had been no adverse effects on the applicant’s psychological or physical integrity or well-being as a result of R.V.’s conduct. Even if the applicant had felt insulted by the remarks made by R.V., this in itself could not be considered in breach of the applicant’s Article 8 rights. Moreover, in the Government’s view, the school and the State authorities had properly reacted to the allegations made by the applicant and had tried to settle the dispute between him and the teacher. However, the applicant’s father had not properly participated in the mediation efforts made by the relevant authorities. 77. In any event, the Government asserted that the efforts made by the authorities, in particular the inspection carried out by the Agency, had produced the desired result, as the applicant’s father had acknowledged in a meeting with the head teacher that the applicant’s conflict with R.V. had been settled. In the Government’s view, all other relevant authorities, including the Ombudsperson for Children and the State Attorney’s Office, had properly discharged their obligations concerning the applicant’s allegations of harassment at school. The Court’s assessment (a) General principles 78. The object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in an effective respect for private life (see A, B and C v. Latvia, cited above, § 147). 79. Whether a case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see, for instance, Burlya and Others v. Ukraine, no. 3289/10, § 162, 6 November 2018). 80. These principles may also be relevant in an education context. While under Article 2 of Protocol No. 1 the State has an obligation to secure to children their right to education, the sending of a child to school necessarily involves some degree of interference with his or her private life under Article 8. Moreover, functions relating to the internal administration of a school, such as discipline, are an inherent part of the education process and the right to education (see Costello-Roberts, cited above, § 27). 81. Although not all measures in the field of education will affect the right to respect for private life, it would be impossible to reconcile any acts of violence or abuse by teachers and other officials in educational institutions with the children’s right to education and the respect for their private life (see paragraphs 58-59 above). The need to remove any such treatment from educational environments has also been clearly affirmed at international level (see paragraphs 39-51 above). 82. In the context of provision of an important public service such as education (see Grzelak v. Poland, no. 7710/02, § 87 in fine, 15 June 2010), the essential role of the education authorities is to protect the health and well-being of students having regard, in particular, to their vulnerability relating to their young age. Thus, the primary duty of the education authorities is to ensure the students’ safety in order to protect them from any form of violence during the time in which they are under the supervision by the education authorities (see Kayak v. Turkey, no. 60444/08, § 59, 10 July 2012). (b) Application of these principles to the present case 83. The Court has already found above that the treatment complained of by the applicant entailed an adverse effect on his psychological well-being and his moral integrity, giving rise to an issue under Article 8 (see paragraphs 60-61 above). There is no doubt that the treatment entailing such consequences, administered by a teacher in a public school while the applicant was under his control, amounted to an interference under Article 8 (see, mutatis mutandis, V.K. v. Russia, cited above, § 183). 84. It remains to be determined whether such an interference was justified. In making that assessment, the Court will have regard to the fact that the applicant complained of not only the harassment by the teacher, but also of the failure of the relevant authorities to react to his allegations of harassment; a matter which may more appropriately be analysed in terms of the State’s positive duty (see, for instance, Radionova v. Russia (dec.), no. 36082/02, 28 March 2009). In any event, it should be reiterated that whether a case be analysed in terms of a positive duty on the State or an interference by a public authority, the applicable principles are broadly similar (see paragraph 79 above). (i) The applicant’s allegations of harassment by the teacher 85. The Court notes that the teacher R.V. initially uttered various insults against the applicant for allegedly being late for class (see paragraph 6 above). R.V. then verbally abused the applicant on two further occasions. In particular, the day after the initial incident, R.V. indirectly referred to the fact that the applicant had reported him to the head teacher by saying “when you say to a fool that he is a fool, that should not be an insult for him” (see paragraph 7 above). On a later occasion R.V. again called the applicant “a fool” because the applicant had turned a wrong page in the textbook during a lesson (see paragraph 8 above). 86. While R.V.’s first insults against the applicant were aimed at disciplining him and his classmates, the two latter occasions cannot be seen as anything but gratuitous verbal abuse against the applicant amounting to his humiliation, belittling and ridiculing. In any case, no justification for R.V.’s conduct can be provided. R.V., as a teacher, was placed in a unique position of authority over the applicant, which made his actions susceptible of having an important impact on the applicant’s dignity, well-being and psychological development. 87. It is true that the verbal abuse was not at a very high scale of intensity and did not degenerate into further, more systemic, harassment. However, R.V., as a teacher, was expected to understand that effects of verbal provocation and abuse might deeply affect students, particularly those who are sensitive (see paragraph 13 above). Moreover, as a teacher, he should have been aware that any form of violence, including verbal abuse, towards students, however mild, is not acceptable in an educational setting and that he was required to interact with students with due respect for their dignity and moral integrity. 88. Accordingly, having regard to a position of trust, authority and influence as well as the social responsibility that teachers have, there is no room for tolerating any harassment by a teacher towards a student (see paragraph 48 above). The Court emphasises that frequency, severity of harm and intent to harm are not prerequisites for defining violence and abuse in an educational setting (see paragraph 44 above). 89. In view of the principles set out above (see paragraphs 81-82 above), and the right of children to respect for their human dignity, physical and psychological integrity, the Court finds that the harassment by verbal abuse of the kind to which the applicant was subjected by R.V. amounts to an unacceptable interference with the right to respect for private life under Article 8, for which the State bore responsibility (see paragraphs 83-84 above). 90. The above considerations would be sufficient for the Court to find a violation of Article 8 of the Convention. However, as already noted, given the nature of the applicant’s complaint, the Court finds it important to examine the manner in which the domestic authorities responded to the applicant’s allegations of harassment (see paragraph 84 above). (ii) The domestic authorities’ response to the applicant’s allegations of harassment 91. Consistently with the above principles under Article 8 on the protection of children from any form of violence or abuse in educational institutions (see paragraphs 80-82 above), as well as the relevant international standards (see paragraphs 39-51 above), the Court finds that the domestic authorities must put in place appropriate legislative, administrative, social and educational measures to prohibit unequivocally any such conduct against children at all times and in all circumstances, and thus to ensure zero tolerance to any violence or abuse in educational institutions. This also relates to the necessity of ensuring accountability through appropriate criminal, civil, administrative and professional avenues. In this context, it is important to reiterate that the State enjoys a margin of appreciation in determining the manner in which to organise its system to ensure compliance with the Convention (see paragraph 79 above). 92. The Court notes the absence of school policies and procedures that specifically address the problem of bulling behaviour by teachers. However, the relevant Croatian legal framework, through the criminal, civil, administrative and professional provisions, in principle provided for the protection of children in educational institutions from violence or abuse (see paragraphs 30-38 above). In the present case, the applicant’s allegations of harassment by R.V. were addressed through the criminal and administrative and professional avenues. 93. While some of the aspects of the State Attorney’s reasoning when rejecting the applicant’s criminal complaint sit uncomfortably with the authorities’ duty to ensure zero tolerance to any violence or abuse in educational institutions (see paragraphs 25 and 91 above), the Court, acknowledging that an approach to protection of children from violence should be graded according to its gravity (see paragraph 47 above), does not consider in the circumstances of the present case that the recourse to criminal avenue was critical to fulfil the State’s obligations under Article 8. The Court will thus further examine the manner in which the applicant’s allegations were addressed within the available administrative and professional avenues. 94. In this connection, it is noted that the domestic legislation envisages a system of mechanisms for supervision of the education process (see paragraphs 34-37 above). Those mechanisms can generally be viewed as measures of education inspection and measures of pedagogical supervision. Education inspection is carried out by the education inspectorate, which is one of the Ministry’s organisational units. Its aim is to control the manner in which education staff in schools comply with their duties and responsibilities towards students, including dealing with instances of ill ‑ treatment or other inappropriate behaviour towards students. An education inspector may order the adoption of relevant measures for the protection of students, as well as institute minor offence proceedings or, in the event of findings relating to criminal conduct, refer a case to the competent prosecuting authorities. 95. In some instances, if professional pedagogical supervision is needed prior to the adoption of a decision by the education inspectorate, such supervision may be carried out. The authority responsible for professional pedagogical supervision is the Agency, which, in accordance with the Act on Professional Pedagogical Supervision, has the authority to make an assessment of the performance of teaching tasks in a school and indicate the measures which need to be taken for the elimination of identified irregularities and omissions (see paragraphs 36-37 above). 96. In the case at issue, following the applicant’s initial complaint to the head teacher of harassment by R.V. (see paragraph 6 above), no concrete measure was taken by the school authorities until his father sent letters also to various State authorities asking for the applicant to be protected from further harassment at school (see paragraph 12 above). In the meantime, the applicant had been subjected to two additional instances of verbal abuse by R.V. (see paragraphs 7-8 above). 97. Following the specific complaints made by the applicant’s father, the school authorities organised a reconciliation process between the applicant and R.V. In that process, the only measure taken with regard to R.V. involved a verbal reproach from the school psychologist (see paragraph 13 above). However, no formal decision or measure was adopted with regard to R.V.’s conduct, nor were the relevant administrative professional procedures before the Ministry set in motion (see paragraphs 93-94 above). 98. In the Court’s view such reconciliation process was manifestly ineffective. The domestic authorities failed to recognise that what was at stake was not merely the settling of things between the applicant and R.V., but the necessity of confronting and addressing the problem posed by R.V.’s inacceptable conduct that affected not only the applicant but, according to the relevant information, some other students as well (see paragraph 24 above). 99. It is further noted that the Ministry reacted only following a specific request by the applicant’s father. It sent the case to the Agency for its pedagogical educational supervision (see paragraph 15 above). However, there is no indication that the Ministry’s education inspectorate considered taking any other measures within its competence to address the specific complaints made by the applicant, such as questioning the applicant or adopting the relevant measures to protect students, providing specific training for the teacher and, if appropriate, instituting the relevant proceedings (see paragraph 35 above). 100. In the context of its pedagogical supervision, the Agency focused on the manner of R.V.’s delivery of mathematics lectures, without conducting an investigation into the impugned events whereby he had verbally abused the applicant and his behaviour in class towards students (see paragraphs 17-19 above). The conclusions reached by the Agency are open to doubt in view of the allegations that some students had not honestly answered the Agency’s questionnaire due to a fear of reprisal (see paragraph 24 above). Moreover, in its conclusions the Agency suggested that the matter be resolved in a further discussion between the school authorities and the applicant’s father. 101. Having regard to its findings above concerning the ineffectiveness of a mere reconciliation process (see paragraph 97 above), the Court fails to see how a discussion between the school authorities and the applicant’s father could be considered an adequate measure addressing the infringement of the applicant’s rights by the verbal abuse from R.V. In the Court’s view, a resolute action was needed to address the deficiencies in the methods of approach to the students applied by R.V. The school also failed to respond in any way to the applicant’s request to be removed to another class or to assign another math teacher to his class (see paragraph 14 above). 102. The Court also notes that there is no indication that the Agency or the Ministry followed up on further developments in the applicant’s case or his situation at school. In this connection, it is difficult to accept that a single letter from the head teacher alleging that the applicant’s father had stated that the matter had been settled could be considered sufficient. Indeed, there is no indication that the content of that letter was authorised by the applicant’s father, and his version of events differs from that presented in the letter (see paragraphs 20 and 74-75 above). In any event, it should have been obvious to the State education administration that the type of behaviour impugned to R.V., and its effects on the applicant, required a more diligent investment of the knowledge and resources to understand its consequences and implications of failing to provide appropriate and expected care to the applicant at school. 103. In sum, the State authorities failed to respond with requisite diligence to the applicant’s allegations of harassment at school. The Court therefore considers that their response fell short of the requirements of Article 8 of the Convention. (iii) Conclusion 104. In light of the above considerations, the Court finds that there has been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 105. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 106. The applicant claimed 15,000 euros (EUR) in respect of non ‑ pecuniary damage. He also claimed EUR 3,000 in respect of pecuniary damage related to his university fees. 107. The Government contested the applicant’s claim. 108. 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 7,500 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. Costs and expenses 109. The applicant also claimed EUR 650 for the costs and expenses incurred before the domestic authorities and the Court. 110. The Government challenged the applicant’s claim. 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 considers it reasonable to award the sum claimed, plus any tax that may be chargeable to the applicant. 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 life) of the Convention, finding that the State authorities had failed to respond with requisite diligence to the applicant’s allegations of harassment at school. |
351 | Expulsion or extradition cases | THE LAW I. REQUEST TO STRIKE OUT THE APPLICATION 26. The applicant complained that her return to Iraq would involve a violation of Article 3 of the Convention. This provision reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 27. The respondent Government asserted that the case should be struck out, since the applicant, following the Migration Board ’ s decision of 15 October 2014, no longer faced a risk of being expelled to Iraq. In the alternative, the Government contended that the application should be declared inadmissible as the applicant could no longer claim to be a victim. 28. The applicant submitted that she no longer wished to pursue her application and that she had no objections to the Court striking out the case. She stated that she had obtained what she was seeking when she applied to the Court and that, for her, the matter had finally been resolved. 29. The Court notes that the applicant has been granted a permanent residence permit in Sweden. In these circumstances, the matter has been resolved, within the meaning of Article 37 § 1 (b) of the Convention. Regard is had also to the fact that the applicant does not intend to pursue her application (Article 37 § 1 (a)). Furthermore, in accordance with Article 3 7 § 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 the case. 30. Accordingly, it is appropriate to strike the application out of the list of cases. II. RULE 39 OF THE RULES OF COURT 31. As a consequence of the above, the application of Rule 39 of the Rules of Court is discontinued. | In this case the applicant’s expulsion was suspended on the basis of an interim measure granted by the Court under Rule 39 of its Rules of Court, which indicated to the Swedish Government that the applicant should not be expelled to Iraq whilst the Court was considering her case. In October 2014 the applicant was granted a permanent residence permit in Sweden and, following this decision, the applicant submitted that she no longer wished to pursue her application before the European Court. The Court therefore considered that the matter had been resolved at national level and decided to strike the application out of the Court’s list of cases. |
858 | Interception of communications, phone tapping and secret surveillance | THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 35. The applicant complained that her secret surveillance had been in violation of the guarantees of Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” AdmissibilityThe parties ’ submissions The parties ’ submissions The parties ’ submissions 36. The Government submitted that the applicant had failed to exhaust the domestic remedies and to lodge her complaints within six months from the date of the final decision as required by Article 35 § 1 of the Convention. 37. The Government submitted that the applicant had become acquainted with the judicial warrant of 3 February 2010 when granted access to the case file on 12 May 2010 but failed to lodge an appeal against it within fifteen days from that date, in breach of the procedure envisaged in Articles 376.1 and 379 of the Code of Criminal Procedure. Had the applicant considered that procedure not to constitute an effective remedy for her complaints under Article 8 of the Convention, the six-month time-limit should be considered to have started to run from 12 May 2010, the date when she familiarised herself with the warrant. In any event, contesting the admissibility of the recordings as evidence in the proceedings before the trial court could not be regarded as an effective remedy in respect of a complaint under Article 8. The Government relied on the Court ’ s findings in the case of Kirakosyan (no. 2) where it was concluded that contesting the validity of the grounds of a search warrant before the court examining the merits of the criminal case was not an effective remedy for the purposes of Article 8 (see Kirakosyan v. Armenia (no. 2), no. 24723/05, § 49, 4 February 2016). 38. The applicant maintained that throughout the criminal proceedings at the domestic level she had argued that her secret surveillance had been unlawful once she became aware of the judicial warrant of 3 February 2010 and of the covert operation carried out on the basis of that warrant. Had she lodged an appeal against the warrant of 3 February 2010 more than three months after its adoption, her appeal would have been considered to be lodged out of time. In any event, issues in relation to evidence collected as a result of her secret surveillance could not be the subject of examination in separate proceedings in the circumstances where that evidence formed part of the body of evidence submitted to the court determining the criminal charge against her. The Code of Criminal Procedure did not provide for a procedure whereby it would be possible to challenge evidence, subject to examination by the trial court, in separate proceedings. The Court ’ s assessment 39. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention 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 (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 70 and 71, 25 March 2014). 40. 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 (see Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001 ‑ XI (extracts)). 41. If no remedies are available or if they are judged to be ineffective, the six-month time-limit contained in Article 35 § 1 of the Convention in principle runs from the date of the act complained of (see Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III). Thus, the time ‑ limit only starts to run from the final decision resulting from the exhaustion of remedies which are adequate and effective to provide redress in respect of the matter complained of. In this sense the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated, since not only are they combined in the same Article, but they are also expressed in a single sentence whose grammatical construction implies such a correlation (see Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004 ‑ II (extracts). 42. Turning to the circumstances of the present case the Court notes at the outset that the applicant raised the issue of covert surveillance in the proceedings before the trial court and later in her appeals against her conviction. 43. The Court agrees with the Government that the courts determining the criminal charge against the applicant were not capable of providing an effective remedy in so far as her complaints under Article 8 of the Convention were concerned. Although those courts were empowered to examine questions relating to the admissibility of evidence, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant ’ s right to respect for her private life and correspondence was not “in accordance with the law” or not “necessary in a democratic society”; still less was it open to them to grant appropriate relief in connection with the complaint (see Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001 ‑ IX; Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 59, 8 March 2011; İrfan Güzel v. Turkey, no. 35285/08, §§ 106 and 107, 7 February 2017; and, by contrast, Dragojević v. Croatia, no. 68955/11, §§ 72-74, 15 January 2015; Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 40-44, 31 March 2016, and Radzhab Magomedov v. Russia, no. 20933/08, §§ 77-79, 20 December 2016). 44. The Court therefore concludes that raising the issue of covert surveillance before the courts examining the merits of the criminal case against the applicant, in view of the state of the domestic law and practice, cannot be regarded as an effective remedy in respect of her complaints under Article 8. 45. Having reached this conclusion, the Court should next examine whether the applicant had at her disposal an effective remedy which she was required to exhaust before applying to the Court. The Government argued that it was open to the applicant to lodge an appeal against the judicial warrant authorising her secret surveillance when she found out about it. 46. The Court notes that the Government failed to specify the scope of the potential review of the warrant of 3 February 2010 by the Court of Appeal, had the applicant lodged an appeal against it. In the absence of any specific domestic provisions it is not at all clear whether the Court of Appeal was empowered to examine whether the contested interference answered a pressing social need and was proportionate to the aims pursued ( Peck v. the United Kingdom, no. 44647/98, §§105-107, ECHR 2003 ‑ I; and Keegan v. the United Kingdom, no. 28867/03, §§ 40-43, ECHR 2006 ‑ X). 47. The Court further notes that the judicial warrant in question stated that it was subject to appeal within fifteen days whereas Article 379 of the Code of Criminal Procedure sets out a time-limit of ten days to lodge appeals against procedural decisions (see paragraphs 9 and 30 above). In any event, it is obvious that the person concerned would not be able to lodge a timely appeal in a situation where the latter became aware of the warrant and the secret surveillance conducted on its basis after that period. Relying on the decision of the Court of Cassation of 28 March 2014 (see paragraph 34 above), the Government submitted that the applicant could have lodged an appeal against the warrant of 3 February 2010 within fifteen days from the moment when she became acquainted with it, that is 12 May 2010, which she failed to do. It should be noted, however, that the relevant decision of the Court of Cassation concerned a specific situation where a person had attempted to appeal against a judicial warrant authorising an operative and intelligence measure in a case where the prosecution had not pursued the charges against him in court. Therefore the given example of domestic case ‑ law cannot be regarded as supporting the Government ’ s claim that the applicant had an effective possibility of lodging an appeal against the warrant, having found out about it at the end of the investigation in the circumstances where the criminal case against her was about to be sent to the trial court for examination on the merits. The Government has not submitted any example of domestic case-law where the Court of Appeal accepted for examination an appeal against a procedural decision concerning a piece of evidence forming part of an indictment in a case which had been transmitted or was about to be transmitted to the trial court determining the criminal charge against a person. Furthermore, the relevant provisions of the Code of Criminal Procedure set out the regular procedure for lodging appeals against procedural decisions within ten days of their pronouncement (see paragraph 30 above) while in its decision of 28 March 2014 the Court of Cassation clarified the principles with regard to calculation of the time-limits for such appeals (see paragraph 34 above). However, the Court of Cassation was not called to examine the powers and competence of the Court of Appeal when examining appeals against procedural decisions rendered in the course of criminal proceedings where an indictment had been finalised, with the result that the case file had been transmitted to the trial court whereas the Government, as noted above, has not produced any example of domestic case-law where the Court of Appeal agreed to adjudicate an appeal against a judicial warrant relating to evidence forming part of the body of incriminating evidence submitted to a court determining a criminal charge. 48. It is not disputed between the parties that the applicant and her lawyer found out about the secret surveillance measures and the relevant judicial warrant authorising them on 12 May 2010. The indictment was finalised and the case transmitted to the trial court on 25 May 2010 (see paragraphs 15 and 16 above), that is less than two weeks later. In the absence of a clear procedure and, as already noted, of a consistent domestic practice concerning remedies in respect of procedural judicial acts, a fact acknowledged by the Court of Cassation in its decision of 28 March 2014 (see paragraph 34 above), the Court is not convinced that lodging an appeal against the judicial warrant of 3 February 2010 in a separate procedure at the close of the investigation was an available and sufficient remedy to afford the applicant redress in respect of the alleged breach of Article 8 of the Convention. 49. In view of the above considerations, the Court finds that lodging an appeal against the District Court ’ s warrant of 3 February 2010 was not an effective remedy to be exhausted. It therefore dismisses the Government ’ s objection as to the non-exhaustion of domestic remedies. 50. The Court observes that the applicant introduced her application with the Court within six months of the final judgment in the criminal proceedings against her. In view of the Court ’ s above-mentioned finding that raising the Convention complaints in relation to the secret surveillance before the court determining the criminal charge against the applicant did not constitute an effective remedy within the meaning of Article 35 § 1 of the Convention, the Court must now determine whether the applicant could be considered to have complied with the six-month rule. 51. Referring to the Court ’ s judgment in the case of Kirakosyan (no. 2), the Government argued that the applicant ’ s complaints under Article 8 should be considered to have been lodged out of time (see Kirakosyan (no. 2), cited above, § 49) since she had failed to introduce them within a period of six months from the moment when she found out about the surveillance measures and became acquainted with the relevant judicial warrant which had served as their basis. The Court observes, however, that the Kirakosyan (no. 2) case concerned a search carried out in the applicant ’ s presence (see Kirakosyan (no. 2), cited above, §§ 14 and 15) hence a measure of which the applicant had been aware during the investigation as opposed to the situation in the present case where the applicant learnt about the secret surveillance measures after the completion of the investigation with the criminal case against her being sent to the trial court for examination. Notably, in its decision of 28 March 2014 the Court of Cassation also acknowledged the need to adopt a different approach, in so far as the procedure for lodging appeals against procedural decisions was concerned, depending on the type of the operative and intelligence measure. It stated that, for example, in the case of a search the relevant time-limit could start from the moment when it was carried out, as opposed to secret surveillance in which case the moment when the person became aware of the measure was the date to be taken into account (see paragraph 34 above). 52. The Court notes that the applicant learned about the covert surveillance at the final stage of the investigation when she was granted access to the case file and that shortly thereafter her indictment, where the prosecution had used the intercepted material as evidence to substantiate the case against her, was finalised with the case being sent to the trial court for examination on the merits. Against this background, and in view of the Court ’ s above finding that lodging an appeal in a separate procedure at that stage of the proceedings did not constitute an effective remedy either, in view of the uncertainty as to the effectiveness of this remedy, the Court considers that it was not unreasonable for the applicant to try to bring her grievances to the attention of the trial court. This finding is further reinforced by the fact that the domestic courts did in fact examine the applicant ’ s complaints, which primarily concerned the alleged unlawfulness of surveillance measures (see paragraphs 19 and 21 above) and therefore addressed, in substance, her Convention complaints. In these circumstances, the Court considers that the applicant cannot be reproached for her attempt to bring her grievances to the attention of the domestic courts through the remedies which she mistakenly considered effective (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, § 107, 7 November 2017). 53. Against this background, the Court finds that it was not unreasonable for the applicant to raise her Convention complaints before the courts determining the criminal charge against her in order to give the domestic courts an opportunity to put matters right through the national legal system, thereby respecting the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, mutatis mutandis, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 141, ECHR 2012). 54. Accordingly, the Court also rejects the Government ’ s objection as to the failure to comply with the six-month rule. 55. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions 56. The applicant contended that her secret surveillance had been unlawful as it had been based on a court warrant issued contrary to the relevant domestic law. That warrant, contrary to the requirements of Article 286 of the Code of Criminal Procedure, had contained no indication of the person in whose respect the secret surveillance measures authorised by it were to be applied. The material in the case file did not include any court warrant authorising her video and audio surveillance. Neither did it include any court order authorising the interception of her telephone conversations. 57. The Government accepted that there had been an interference with the applicant ’ s rights under Article 8 of the Convention. However, they considered that such interference had been justified. The Government submitted that the court warrant authorising the applicant ’ s secret surveillance had been issued in compliance with the requirements of Articles 278, 281 and 284 of the Code of Criminal Procedure and the Operative and Intelligence Measures Act. They argued that it was apparent from the text of the court warrant of 3 February 2010 that the authorised operative and intelligence measures, namely audio and video recordings, were to be carried out in respect of the applicant. Moreover, such interference had pursued the legitimate aim of investigating and prosecuting crime and had been proportionate to such aim. The Court ’ s assessment (a) Whether there was an interference 58. It is common ground between the parties that the recording of the applicant ’ s personal and telephone conversations with A.S. constituted an interference with her rights under Article 8 of the Convention. The Court sees no reason to hold otherwise (see Khan cited above, §§ 9, 10 and 25; Vetter v. France, no. 59842/00, §§ 10 and 20, 31 May 2005, Dragojević, cited above, § 78). (b) Whether the interference was justified (i) General principles 59. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one of more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see, among other authorities, Kennedy v. the United Kingdom, no. 26839/05, § 130, 18 May 2010). 60. The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 228-230, ECHR 2015 with further references). 61. As to the question of whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court reiterates that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions. In practice, this means that there must be adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law (see Kennedy, cited above, § 153). 62. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society”. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded (see Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy, cited above, § 154). (ii) Application of these principles to the present case 63. The applicant in the present case did not complain in general about the existence of legislation allowing measures of covert surveillance. The basis of her complaint was a specific instance of such surveillance which took place in connection with criminal proceedings against her. In those circumstances, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances (see Kennedy, cited above, § 119; and Goranova ‑ Karaeneva, cited above, § 48). 64. The Court observes that the applicant ’ s complaints are primarily focused not on the lack of a legal basis for the interference in the domestic law but on the failure of the District Court to comply with the relevant requirements of the law when authorising secret surveillance measures in her respect. 65. The applicant submitted that the court warrant of 3 February 2010 did not comply with the requirements of Article 286 of the Code of Criminal Procedure. The Government did not engage with this submission. In particular, the operative part of the warrant did not state the applicant ’ s name as the person in whose respect audio and video recording was permitted to be carried out by the police (see paragraph 9 above). The Government submitted that it was clear from the reasoning of the warrant that the secret surveillance was authorised in respect of the applicant. The Court observes, however, that the reasoning part of the court warrant of 3 February 2010 is a literal reproduction of the relevant application lodged by the Head of the Department Against Organised Crime where the latter had stated that A.S. ’ s actions had contained the elements of a crime prescribed by Article 311, that is of bribe-taking (see paragraphs 8 and 9 above). To follow the Government ’ s approach would entail speculation as to whether the relevant application and the court warrant issued on its basis mistakenly stated A.S. ’ s name instead of that of the applicant and that the secret surveillance measures had eventually been authorised in respect of the applicant and not any other person. In any event, the Court is of the opinion that secret surveillance being a serious interference with a person ’ s right to respect for private life, a judicial authorisation serving as its basis cannot be drafted in such vague terms as to leave room for speculation and assumptions with regard to its content and, most importantly, to the person in whose respect the given measure is being applied. 66. Furthermore, Article 286 of the Criminal Code requires that a court warrant contain, inter alia, an indication of the investigative activity or the operative and intelligence measure to be applied, specifying the activity or the measure (see paragraph 27 above). The Court observes that Section 14 (1) of the Operative and Intelligence Measures Act contains an exhaustive list of types of operative and intelligence measures and that list does not contain a measure called “audio and video recordings” (see paragraph 31 above) referred to in the court warrant of 3 February 2010. In the present case the police recorded the applicant ’ s conversations with A.S. during their meetings of 3 and 4 February as well as their telephone conversation on the former date (see paragraphs 10 and 11 above). It appears therefore that the police carried out two distinct types of operative and intelligence measures, that is external surveillance and interception of telephone communications (see paragraphs 32 and 33 above), whereas the court warrant of 3 February 2010 did not specify those measures. Having regard to the aforementioned, the Court finds that overall the authorisation of the applicant ’ s secret surveillance has not been subject to proper judicial supervision. 67. The foregoing considerations are sufficient for the Court to conclude that the applicant ’ s secret surveillance was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. Having regard to this conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 of the Convention in this case (see Petrova v. Latvia, no. 4605/05, § 98, 24 June 2014). 68. There has accordingly been a violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 69. The applicant complained of the use of evidence obtained by secret surveillance in the criminal proceedings against her. She relied on Article 6 § 1 of the Convention which, in so far as relevant, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility 70. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties ’ submissions The parties ’ submissions The parties ’ submissions 71. The applicant contended that she had not had a fair trial because the courts had admitted in evidence the recordings unlawfully obtained as a result of her unlawful secret surveillance and had based their decisions on that evidence. This had been contrary to the relevant rules on admissibility of evidence under the Code of Criminal Procedure, which had rendered her trial unfair. 72. The Government submitted that during the proceedings the applicant had had an effective possibility to oppose the use of the recordings as evidence. The recordings in question were not the only evidence on which her conviction had been based while the domestic courts ’ evaluation of the impugned evidence was not arbitrary. The Court ’ s assessment (a) General principles 73. The Court reiterates that, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports of Judgments and Decisions 1998 ‑ IV; Jalloh v. Germany [GC ], no. 54810/00, §§ 94-96, ECHR 2006 ‑ IX; and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017). 74. 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 a violation of another Convention right is concerned, the nature of the violation found (see Bykov v. Russia [GC], no. 4378/02, § 89, 10 March 2009; Lee Davies v. Belgium, no. 18704/05, § 41, 28 July 2009; and Prade v. Germany, no. 7215/10, § 33, 3 March 2016). 75. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be established, in particular, whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Szilagyi v. Romania (dec.), no. 30164/04, 17 December 2013). 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 (see, among other authorities, Bykov, cited above, § 90 and Lisica v. Croatia, no. 20100/06, § 49, 25 February 2010). While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Lee Davies, cited above, § 42; Bykov, cited above, § 90; and Bašić v. Croatia, no. 22251/13, § 48, 25 October 2016). 76. Furthermore, when determining whether the proceedings as a whole have been fair, the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration and be weighed against the individual interest that the evidence against him be gathered lawfully (see Jalloh, cited above, § 97, and Prade, cited above, § 35). 77. As regards, in particular, the examination of the nature of the Convention violation found, the Court observes that in several cases it has found the use of covert listening devices to be in breach of Article 8 since such interference was not “in accordance with the law”. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of a particular case conflict with the requirements of fairness guaranteed by Article 6 § 1 (see Khan, cited above, §§ 25-28; Bykov, cited above, §§ 94-105, and P.G. and J.H., cited above, §§ 37-38). (b) Application of these principles to the present case 78. The Court notes that the applicant had an effective opportunity to challenge the authenticity of the evidence and oppose its use. She did so during the proceedings before the District Court and in her appeals ( see paragraphs 17 and 20 above). Admittedly, the District Court addressed the applicant ’ s arguments very vaguely, merely stating that the applicant ’ s allegations of procedural violations had not been confirmed (see paragraph 19 above). However, in its judgment the Court of Appeal did examine the applicant ’ s arguments on the merits and provided reasons for its decision to uphold the District Court ’ s findings in respect of the impugned evidence (see paragraph 21 above). Hence, the fact that the applicant ’ s attempts to exclude the impugned recordings from evidence were unsuccessful is immaterial to the conclusion that the applicant had the opportunity – which she took – of challenging its authenticity and opposing its use (see Dragojević, cited above, § 132). 79. The Court further notes that the impugned evidence was not the only evidence on which the applicant ’ s conviction was based (compare Schenk, cited above, § 48; and Khan, cited above, § 37). The District Court, when convicting the applicant, relied on A.S. ’ s statement, witness statements, material evidence, forensic evidence as well as operative data (see paragraph 19 above). 80. In these circumstances, the Court finds that the use at the applicant ’ s trial of the secretly-taped material did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention. 81. There has accordingly been no violation of Article 6 § 1 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 82. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 83. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage. 84. The Government considered the applicant ’ s claim to be excessive. 85. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, and in view of the specific circumstances of the case, the Court awards the applicant EUR 1,200 in respect of non-pecuniary damage. Costs and expenses 86. The applicant made no claim for costs and expenses. Default interest 87. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that the surveillance measure used against the applicant had not had proper judicial supervision and had not been “in accordance with the law” within the meaning of the Convention. It noted in particular that the warrant had not been specific enough about the person who was the object of the surveillance measure, vagueness which was unacceptable when it came to such a serious interference with the right to respect for private and family life as secret surveillance. Furthermore, the warrant had not listed the specific measures that were to be carried out against the applicant. The Court held, however, that there had been no violation of Article 6 (right to a fair trial) of the Convention in the applicant’s case, finding that the use of the secretly taped material had not conflicted with the requirements of fairness guaranteed by Article 6 § 1. |
328 | Right to life (Article 2 of the European Convention on Human Rights) | II. RELEVANT DOMESTIC LAW AND PRACTICE 30. The relevant part, in the present case, of section 16 of Law no. 2559 on the powers and duties of the police, enacted on 4 July 1934 and published in the Official Gazette on 14 July 1934, as in force at the relevant time, read as follows : “... Police officers are entitled to use their weapons only in the following situations : ( a) in self-defence; ... ( h) or where a person or group shows resistance to the police and prevents it from discharging its duties, or where there is an attack against the police. ... ” 31. Section 16 of Law no. 2559 was amended by Law no. 5681, published in the Official Gazette on 14 June 2007. That provision now reads as follows : “The police ... ( c) may use firearms for the purposes of arresting a person against whom an arrest or custody warrant has been issued ... or a suspect in the act of committing an offence, within limits that are commensurate with the fulfilment of that purpose. Before making use of firearms, the police ... must first call out ‘ stop! ’ ... If the person continues to flee, the police may fire a warning shot. If, despite those warnings, the person still continues to flee, and if no other means of stopping the person can be envisaged, the police may use firearms for the purposes of stopping the person, within limits that are commensurate with the fulfilment of that purpose ( kişinin yakalanmasını sağlamak amacıyla ve sağlayacak ölçüde silahla ateş edilebilir ) ...” 32. Under section 24 of Law no. 2911 on gatherings and demonstrations : “Where a gathering or a demonstration that has begun in compliance with the law ... turns into a gathering or demonstration that is in breach of the law : ... ( b) The highest local civilian authority ... will send [ one or more ] local commanding officer of the security forces to the scene of the incident. That commanding officer will order the crowd to disperse in accordance with the law and will warn it that, in the event of refusal to comply, force will be used. If the crowd does not disperse, it will be dispersed by the use of force ... In the situations described ..., in the event of an attack on the security forces or on the property or individuals they are protecting; or where there is effective resistance, force will be used without any need [ to issue ] an order. ... Where a gathering or a demonstration has begun in breach of the law ..., the security forces ... must take the necessary precautions. The commanding officer of the forces will order the crowd to disperse in accordance with the law and will warn it that, in the event of refusal to comply, force will be used. If the crowd does not disperse, it will be dispersed by the use of force .” 33. Section 6 annexed to Law no. 2559 on the duties and powers of the police, as in force at the relevant time, read as follows : “The term ‘ use of force ’ shall mean the use of physical force, material force and weapons in order to immobilise offenders, in a gradual manner and in proportion to the particularities and degree of resistance and aggressiveness [of the offender ]. Where the action is taken against a group, the degree of force used and the requisite quantity of weaponry ( zor kullanmanın derecesi ile kullanılacak araç ve gereçler ) will be determined by the supervisor of the intervening unit. ” 34. Article 25 of the directive of 30 December 1982 on the Rapid Response Forces ( Polis Çevik Kuvvet Yönetmeliği ) lays down the principles governing the supervision, control and intervention of those forces during demonstrations ( for the text, see Abdullah Yaşa and Others v. Turkey, no. 44827/08, § 27, 16 July 2013). 35. On 15 February 2008 the director of the general police force ( Emniyet Genel Müdürü ) sent all the security services a circular stating the conditions for the use of tear-gas ( E.G.M. Genelge No. : 19 ). It referred to a directive concerning the use of weapons emitting tear-gas ( Göz Yaşartıcı Gaz Silahları ve Mühimmatları Kullanım Talimatı ) issued in February 2008. This directive describes the features of tear-gas-based weapons and the physiological effects of the gas used ( for the text of the circular, see ibid., § 28 ). THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 36. The applicant alleged that the death of his son had been caused by an excessive use of force. In his view, domestic law did not regulate, in a manner that was compatible with the Convention, the use of firearms by State agents. The latter had allegedly been authorised to use lethal force against his son without it being absolutely necessary. He further complained that the authorities had not carried out an effective investigation into the death. He relied in this connection on Article 2 of the Convention, which reads as follows : “ 1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 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.” 37. The Government disputed his arguments. A. Admissibility 38. The Government objected that the applicant had not complied with the six-month time-limit under Article 35 § 1 of the Convention. In particular, they argued that he should have lodged his application, in accordance with the Court ’ s case-law, within a period of six months which ran, according to them, either from the date of the act complained of or from the date on which he had allegedly become aware of the ineffectiveness of domestic remedies. The Government stated that, if the applicant considered that the decision of the public prosecutor ’ s office, adopted on 3 April 2008, constituted the final domestic decision, he should have lodged his application by 3 October 2008. Consequently, they argued that the application of 17 October 2008 was out of time and had to be rejected. 39. The applicant contested those arguments. 40. The Court would observe that the decision of the public prosecutor ’ s office adopted on 3 April 2008, being the final domestic decision, was notified to the applicant on 17 April 2008. The period laid down by Article 35 § 1 of the Convention thus ran from the next day, 18 April 2008, and expired on 17 October 2008, at midnight ( see Sabri Güneş v. Turkey [GC], no. 27396/06, § 60, 29 June 2012). The application was lodged on that latter date, before midnight, and therefore before the end of the above-mentioned period. Consequently, the Court dismisses the Government ’ s objection that the applicant failed to comply with the six-month rule. It finds that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 ( a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 41. The applicant contended that his son, who had not taken part in the demonstrations in question and had found himself by chance between the demonstrators and the security forces, had been killed deliberately by the latter, which had used a degree of force that was unnecessary and manifestly arbitrary and disproportionate. In addition, domestic law did not regulate, in a manner that was compatible with the Convention, the use of firearms by State agents. The latter had allegedly been authorised to use lethal force against his son in a manifestly inappropriate manner without it being absolutely necessary, in his view. He added that numerous violations of human rights had been committed during the incidents in question and, lastly, that the Government were not able to provide the slightest explanation capable of justifying the degree of force used. In addition, the applicant contended that the investigation had not been conducted in accordance with the procedural requirements under Article 2 of the Convention. 42. The Government accepted the argument that the applicant ’ s son had not taken part in the demonstrations in question and had found himself by chance between the demonstrators and the security forces. They further admitted that Tarık Ataykaya had been struck by a cartridge fired from a weapon used by the security forces during their intervention against the demonstrators. They argued, however, that the use of force in the present case had been compliant with the law, namely section 16 of Law no. 2559 and section 6 appended to that law, and that the fatal incident had been unforeseeable. 43. They added in this connection that the use of force by the security forces had been proportionate because they had been instructed to fire the tear-gas grenades into the air and had followed training for that purpose. 44. The Government further argued that the investigation into the death of Tarık Ataykaya had been comprehensive. They explained that the authorities had immediately opened an investigation to determine the responsibility of the security forces for the death in question and had undertaken all the necessary research to identify the members of the security forces who had used grenade launchers of the relevant type on the day of the incident, but that the investigations had been unsuccessful because the personnel in question had been masked. They further stated that the public prosecutor ’ s office had issued a permanent search notice in order to find the person who had fired the shot in question. Moreover, referring to the decision of 30 January 2008 by the police disciplinary board, they argued that there was no evidence to suggest that the personnel in respect of which the investigation had been carried out were responsible for the death of the applicant ’ s son. Lastly, they submitted that there was no evidence that the security forces had acted with the intention of killing the applicant ’ s son. 2. The Court ’ s assessment 45. The Court reiterates that the text of Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to have recourse to the “use of force”, which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no more than is “absolutely necessary” for the achievement of one of the purposes set out in sub-paragraphs (a), (b) or (c) ( see McCann and Others v. the United Kingdom, 27 September 1995, § 148, Series A no. 324, and Solomou and Others v. Turkey, no. 36832/97, § 64, 24 June 2008 ). The Court further reiterates that the use of the term “absolutely necessary” indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraphs 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. Furthermore, in keeping with the importance of this provision in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances, including such matters as the planning and control of the actions under examination ( see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 176, ECHR 2011). 46. The Court finds it appropriate to begin its analysis with facts which have not given rise to any dispute between the parties. First of all, it is not disputed that the applicant ’ s son, Tarık Ataykaya, was killed on 29 March 2006 by a tear-gas grenade fired by the security forces. Nor is it disputed that he was part of a group of violent demonstrators and found himself by chance between the demonstrators and the police. The Court would further observe that Tarık Ataykaya was killed by a member of the security forces who was masked at the time of the incident. It has thus been established “beyond any reasonable doubt” that a member of the security forces fired a tear-gas grenade towards Tarık Ataykaya, injuring him in the head and causing his death. It follows that the burden of proof is on the authorities, which have a duty to show that the use of lethal force in question was made absolutely necessary by the situation and that it was not excessive or unjustified within the meaning of Article 2 § 2 of the Convention ( see Bektaş and Özalp v. Turkey, no. 10036/03, § 57, 20 April 2010). Against this background, the Court must examine in the present case not only whether the use of potentially lethal force against the applicant ’ s son was legitimate but also whether the operation was regulated and organised in such a way as to minimise to the greatest extent possible any risk to his life ( see Makaratzis v. Greece [GC], no. 50385/99, § 60, ECHR 2004 ‑ XI). It must also verify that the authorities did not act negligently in their choice of measures ( see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 95, ECHR 2005 ‑ VII). 47. The Court reiterates that it is aware of the subsidiary nature of its role and 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 McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Where domestic proceedings have taken place, it is not the Court ’ s task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them ( see, among many other authorities, Edwards v. the United Kingdom, 16 December 1992, § 34, Series A no. 247-B, and Klaas v. Germany, 22 September 1993, § 29, Series A no. 269). Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to eschew the findings of fact reached by the domestic courts ( see Aydan v. Turkey, no. 16281/10, § 69, 12 March 2013). 48. That being said, and in view of the fact that the burden of proof is on the Government, the Court will first ascertain whether the investigation carried out at the domestic level was effective, in the sense that it was capable of leading to the determination of whether the force used was or was not justified in the circumstances ( see Gülbahar Özer and Others v. Turkey, no. 44125/06, § 59, 2 July 2013). Furthermore, it will examine whether there was a legal and administrative framework defining the limited circumstances in which law-enforcement officials were entitled to use force and firearms ( see Makaratzis, cited above, § 59). 49. The Court notes that an investigation was indeed opened following a complaint by the applicant in March 2006, but that the investigation raised issues at a number of levels. 50. First, it must be said that the investigative authorities failed to identify – and therefore to question – the member of the security forces who fired at Tarık Ataykaya, on the ground that his face had been concealed by a balaclava. Nor were they able to establish with certainty the number of security force members who had been authorised to use the type of weapon in question at the time of the incident. Initially, in a letter of June 2006, the Diyarbakır police headquarters informed the public prosecutor ’ s office that three police officers had used the weapons in question ( see paragraph 14 above ). Subsequently, in a letter of 10 April 2007, the public prosecutor ’ s office was informed that twelve other members of the special forces and eleven other members of the rapid intervention force, making a total of twenty-three police officers from the Anti-Terrorist Branch, had also been authorised to use such weapons at the time of the incident ( see paragraph 18 above ). However, there is no evidence in the case file that the identities of all these officers were notified to the appropriate public prosecutor ’ s office, which confined itself, moreover, to interviewing only a few of the police officers ( see paragraphs 20 and 26 above ). Similarly, according to the information in the file, as regards the public prosecutor ’ s request concerning the places where the officers were stationed, the reply of the police authorities was imprecise, providing vague information and simply indicating that the officers had been posted to different areas at the time of the incident (see paragraph 17 above ). In the Court ’ s view, that lack of cooperation by the police authorities with the public prosecutor ’ s office responsible for the investigation is all the more inexplicable as the latter ’ s sole purpose was to obtain official information from a State department. 51. Moreover, it can be seen from the file that the administrative investigation conducted by the police disciplinary board concerned only fourteen police officers and that it was no more successful in identifying the officer who fired the lethal shot ( see paragraph 27-28 above ). In this connection it is noteworthy that, once again, the main obstacle to identifying that officer was the fact that the policemen were wearing balaclavas at the time of the incident. 52. The Court takes the view that it is not necessary to assess in general terms whether it is compatible with the Convention for balaclavas to be worn by security forces whose task it is to confront demonstrators. It is obvious, however, that this practice has had, in the present case, the direct consequence of giving those responsible immunity from prosecution. On account of that practice, the eyewitnesses were not able to identify the officer who fired at Tarık Ataykaya ( see paragraphs 22 - 24 above ) and it was not possible to interview, as suspects or witnesses, all the officers who had used grenade launchers that day. 53. The Court finds that this circumstance, namely the inability of eyewitnesses to identify the officer who fired the shot because he was wearing a balaclava, is in itself a matter of concern. In this connection it would refer to its previous finding, under Article 3 of the Convention, to the effect 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 ( see, mutatis mutandis, Krastanov v. Bulgaria, no. 50222/99, §§ 59 and 60, 30 September 2004, and Rashid v. Bulgaria, no. 47905/99, §§ 63 - 65, 18 January 2007). Similarly, the Court 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 Hristovi v. Bulgaria, no. 42697/05, § 92, 11 October 2011, and Özalp Ulusoy v. Turkey, no. 9049/06, § 54, 4 June 2013 ). Those considerations are all the more valid in the present case as it concerns a death following a shot fired by a member of the security forces who was wearing a balaclava. 54. The Court thus finds that the domestic authorities deliberately created a situation of impunity which made it impossible to identify members of the security forces who were suspected of inappropriately firing tear-gas grenades and to establish the responsibilities of the senior officers, thus preventing any effective investigation ( see, mutatis mutandis, Dedovski and Others v. Russia, no. 7178/03, § 91, ECHR 2008 ). In addition, it is troubling that no information on the incident which caused Tarık Ataykaya ’ s death was mentioned in the records of the security forces ( see paragraph 29 above ). 55. The Court further observes that in the first year following the incident practically no progress was made in the investigation. The public prosecutor admittedly attempted on a number of occasions to identify the members of the security forces who had had recourse to tear-gas grenades (paragraph 13 above ). Those attempts were not, however, followed up, or they were only partly successful and after an unacceptable delay. Moreover, the public prosecutor ’ s officer proceeded only belatedly to hear evidence from the complainant, from a few police officers whose identities had been disclosed and from eyewitnesses. For example, B.A., one of the police officers who had used tear-gas grenades, was not interviewed until 14 February 2007 – more than ten months after the incident ( see paragraph 20 above ). Two other police officers were not interviewed until about two years after the event ( see paragraph 26 above ). In this connection, the Court would reiterate its findings in Bektaş and Özalp ( cited above, § 65 – police officers questioned seven days after the incident), and in Ramsahai and Others ([GC], no. 52391/99, § 330, ECHR 2007-II – police officers questioned three days after the incident), to the effect that such delays not only create an appearance of collusion between the investigative authorities and the police, they could also lead the victim ’ s family – and the public in general – to believe that the members of the security forces are not accountable for their acts to the judicial authorities. In the present case, although there is no evidence that they colluded with each other or with their colleagues in the Mardin police force, the mere fact that appropriate steps were not taken to reduce the risk of such collusion amounts to a significant shortcoming in the adequacy of the investigation ( see Ramsahai and Others, cited above, § 330). 56. Furthermore, the Court observes that, notwithstanding the applicant ’ s request (see paragraph 11 above ), no expert opinion was ordered to establish how the grenade had been fired, especially as, in view of its impact and the injuries caused, it seems that the shot, as stated by an eyewitness ( see paragraph 9 above ), had been direct, following a flat trajectory, rather than a high-angle shot. The Court has already had occasion to observe that “firing a tear-gas grenade along a direct, flat trajectory by means of a launcher cannot be regarded as an appropriate police action as it could potentially cause serious, or indeed fatal injuries, whereas a high-angle shot would generally constitute the appropriate approach, since it prevents people from being injured or killed in the event of an impact ” ( see Abdullah Yaşa and Others, cited above, § 48). 57. As regards, lastly, the regulatory framework for the use of non-lethal weapons, such as tear-gas grenades, the Court would point out that, in the case of Abdullah Yaşa and Others ( cited above ), which concerned an injury caused by the firing of a tear-gas grenade during the same incidents as those which gave rise to the present case, it examined the regulations on the use of tear-gas grenades. It found that at the relevant time Turkish law contained no specific provisions regulating the use of such equipment during demonstrations or any instructions in that connection. Given that during the events in Diyarbakır between 28 and 31 March 2006 two individuals, one of whom was Tarık Ataykaya, were killed by tear-gas grenades, it may be concluded that the police officers were able to act with considerable autonomy and take ill-considered initiatives, as would probably not have been the case if they had been given appropriate training and instructions. In the Court ’ s view, such a situation is not sufficient to provide the level of protection “by law” of the right to life that is required in present-day democratic societies in Europe ( see, mutatis mutandis, Makaratzis, cited above, § 62, and Abdullah Yaşa and Others, cited above, § 49 ). 58. In the light of the foregoing, the Court finds that no serious investigation capable of establishing the circumstances surrounding the death of Tarık Ataykaya has been conducted at the national level and that the Government have not shown satisfactorily that the use of lethal force against the applicant ’ s son was absolutely necessary and proportionate. The same is true for the preparation and supervision of the operation; the Government have not adduced any evidence to suggest that the security forces deployed the requisite vigilance to ensure that any risk to life was reduced to a minimum. In addition, the Court takes the view that, as far as their positive obligation under the first sentence of Article 2 § 1 to put in place an appropriate legislative and administrative framework was concerned, the Turkish authorities had not done all that could be reasonably expected of them, first, to afford to citizens the requisite level of protection, particularly where – as in the present case – potentially lethal force was to be used, and, secondly, to avoid any real and immediate risk to life which might arise in the context of police operations dealing with violent demonstrations ( see, mutatis mutandis, Makaratzis, cited above, § 71). 59. Having regard to the foregoing, it has clearly not been established that the lethal force used against the applicant ’ s son did not go beyond what was “absolutely necessary”. In addition, the Court takes the view that the investigation into the incident of 29 March 2006 lacked the effectiveness required by Article 2 of the Convention. Accordingly, there has been a violation of this provision under its substantive and procedural heads. II. THE OTHER ALLEGED VIOLATIONS 60. The applicant submitted that the death of his son and the failure to prosecute the police officers concerned had constituted, for himself, inhuman and degrading treatment in breach of Article 3 of the Convention. Relying on Article 13 of the Convention, he argued that he had no effective remedy in domestic law by which to bring proceedings against the perpetrator of the lethal shot. In that connection, he complained that the judicial authorities had not carried out a sufficiently comprehensive investigation in order to identify the person responsible for the death. He further argued that the police disciplinary board, which had conducted the disciplinary investigation, could not be regarded as independent and impartial. Further relying on Article 14 of the Convention, he argued that his son had been murdered on account of his Kurdish origin. Based on the same facts, the applicant lastly relied on Article 17 of the Convention. 61. The Government disputed those arguments. 62. As regards the complaint under Article 3 of the Convention, having regard to the criteria laid down in its case-law ( see Aydan, cited above, § 131), the Court is of the view that the present case does not contain a sufficient number of special factors which could have caused the applicant suffering of such dimension and nature that it exceeded the emotional distress inevitably sustained by relatives of a victim of a serious human rights violation (compare Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 179-181, ECHR 2013; see also Perişan and Others v. Turkey, no. 12336/03, § 99, 20 May 2010; and Makbule Akbaba and Others v. Turkey, no. 48887/06, § 46, 10 July 2012). Accordingly, there is nothing to justify finding a violation of Article 3 of the Convention in respect of the applicant. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention. 63. As to the complaint under Articles 14 and 17, the Court notes that it is not substantiated. It is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 ( a) and 4 of the Convention. 64. As to the complaint under Article 13, given that this complaint is in reality identical to that submitted by the applicant under the procedural head of Article 2, and in view of the conclusion it has reached in respect of the latter Article ( see paragraph 59 above ), the Court declares the complaint under Article 13 admissible but finds that it does not need to examine it separately on the merits. III. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 66. The relevant part 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 and individual measures 67. The applicant expressed the wish that the Court ’ s findings in the present case should lead, at national level, to the taking of measures necessary for the prevention of such violations of the Convention in the future. 1. General principles 68. The Court reiterates that, having regard to Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. 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 only 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; Assanidzé 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). 69. The Court further reiterates that its judgments are essentially declaratory in nature and that in general, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment ( see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Brumărescu v. Romania ( just satisfaction ) [GC], no. 28342/95, § 20, ECHR 2001-I; and Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV). This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed ( Papamichalopoulos and Others v. Greece ( Article 50), 31 October 1995, § 34, Series A no. 330 - B). 70. However, in exceptional cases, with a view to assisting the respondent State in fulfilling its obligations under Article 46, the Court seeks to indicate the type of measure that might be taken in order to put an end to the systemic situation identified. It may put forward a number of options and leave the choice and manner of implementation to the discretion of the State concerned ( see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004 ‑ V). In certain cases the very 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, for example, Del Rio Prada, cited above, § 138; Assanidzé, 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 71. As regards the general measures that the State should adopt in order to implement the present judgment, the Court refers back to its findings in the Abdullah Yaşa and Others judgment ( cited above, § 61): “... Moreover, [the Court] noted that at the time of the events, Turkish law lacked any specific provisions governing the use of tear-gas grenades during demonstrations and did not lay down any instructions for their utilisation by the police forces ... The Court notes that on 15 February 2008 ... a circular setting out the conditions for the use of tear gas was issued to all national security services by the Director General of Security. Nevertheless, the Court considers it necessary to reinforce the guarantees on proper use of tear-gas grenades in order to minimise the risks of death and injury stemming from their use, by adopting more detailed legislative and/or statutory instruments, in accordance with the principles set out in paragraph 48 above.” 72. These findings have been supplemented by those in the İzci v. Turkey judgment ( no. 42606/05, § 99, 23 July 2013), where the Court stated that it was crucial that a clearer set of rules be adopted in such matters and that a system be put in place guaranteeing appropriate training of personnel and control and supervision of such personnel during demonstrations, together with an effective ex post facto review of the necessity, proportionality and reasonableness of any use of force, especially against people who showed no violent resistance towards the security forces. 73. The considerations reiterated above, calling upon the Government to take general measures, are also valid in the present case. The Court notes that the violation of the right to life of the applicant ’ s son, as guaranteed by Article 2 of the Convention, originates once again in a problem stemming from the absence of guarantees as to the proper use of tear-gas grenades. Consequently, the Court emphasises the need to strengthen those guarantees, without delay, in order to minimise the risks of death and injury related to the use of tear-gas grenades ( see, to that effect, Abdullah Yaşa, cited above, § 61). It would point out, in that connection, that there is a risk that the inappropriate use of such potentially lethal weapons during demonstrations, for as long as the Turkish system fails to comply with the Convention requirements, may lead to other violations of a similar nature to those observed in the present case. 74. As regards individual measures, the Court has found that the applicant ’ s son died following the firing of a tear-gas grenade and that, on that account, there has been a violation of Article 2 of the Convention. It also found that no effective investigation into the incident had been conducted ( see paragraph 59 above ). 75. In view of the fact that the investigation is still open at national level ( see paragraph 29 above ) and in the light of the documents in the file, the Court finds that in executing the present judgment new investigative measures should be taken under the supervision of the Committee of Ministers. In particular, the measures that the national authorities will have to take in order to prevent impunity must include an effective criminal investigation aimed at the identification and, if appropriate, the punishment of those responsible for the death of the applicant ’ s son. In that connection the Court refers again to the İzci judgment ( cited above, §§ 98 - 99), where it found that an effective investigation also had to seek to establish the responsibility of the senior police officers. B. Article 41 1. Damage 76. The applicant claimed 25, 000 euros (EUR) in respect of pecuniary damage and EUR 80, 000 for non-pecuniary damage. 77. The Government disputed those claims. 78. The Court does not find any causal link between the violation found and the pecuniary damage alleged, and rejects that claim. It is of the view, however, that the applicant should be awarded EUR 65 ,000 for non-pecuniary damage. 2. Costs and expenses 79. The applicant also claimed EUR 6, 603 for the costs and expenses he had incurred in the proceedings before the Court. A statement provided by his lawyer gave the following breakdown : – lawyer ’ s fees : EUR 6, 125, – administrative expenses (telephone calls, postal costs, photocopying ) and translation fees : EUR 478. 80. The Government submitted that those claims were excessive and not substantiated by any document. 81. The Court would point out that in order for costs to be included in an award under Article 41 of the Convention, it must be established that they were actually and necessarily incurred and are reasonable as to quantum ( see Nikolova v Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II). In the present case, having regard to the documents at its disposal and the above-mentioned criteria, the Court finds it reasonable to award the applicant the sum of EUR 5, 000 for all costs and expenses. 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 2 of the Convention in its substantive aspect (right to life) and procedural aspect (the investigation). It found, in particular, that there was nothing to indicate that the use of lethal force against the applicant’s son had been absolutely necessary and proportionate, or that the police had taken the appropriate care to ensure that any risk to life was minimised. It also considered that no meaningful investigation had been carried out at domestic level to enable identification of the person who had fired the fatal shot. Further, as to Article 46 (binding force and execution of judgments) of the Convention, the Court reiterated its findings in the Abdullah Yaşa and Others and Izci judgments (see below, under “Prohibition of inhuman or degrading treatment”), and emphasised the need to reinforce, without further delay, the safeguards surrounding the proper use of tear-gas grenades, so as to minimise the risks of death and injury stemming from their use. It emphasised that, so long as the Turkish system did not comply with the requirements of the European Convention, the inappropriate use of potentially fatal weapons during demonstrations was likely to give rise to violations similar to that in the present case. The Court also held that, in order to ensure effective implementation of its judgment, fresh investigative measures were to be taken under the supervision of the Council of Europe Committee of Ministers to identify and – if appropriate – punish those responsible for the death of the applicant’s son. |
33 | Education | II. RELEVANT DOMESTIC LAW A. The Constitution 61. Article 14 of the Constitution reads: “Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics. All shall be equal before the law.” B. The Constitutional Act on the Constitutional Court 62. The relevant parts of section 62 of the Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 read: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... 2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” C. The Administrative Disputes Act 63. Section 67 of the Administrative Disputes Act ( Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/ 19 92 and 77/ 19 92) provides for special proceedings for the protection of constitutional rights and freedoms from unlawful acts of public officials, specifically that an action can be brought if the following conditions are met: (a) an unlawful action has already taken place; (b) such action is the work of a government official/body/agency or another legal entity; (c) the action resulted in a violation of one or more of the plaintiff ’ s constitutional rights; and (d) the Croatian legal system does not provide for any other avenue of redress. D. The Primary Education Act 64. The relevant provisions of the Primary Education Act ( Zakon o osnovnom školstvu, Official Gazette nos. 59/1990, 26/1993, 27/1993, 29/1994, 7/1996, 59/2001, 114/2001 and 76/2005) read: Section 2 “The purpose of primary education is to enable a pupil to acquire knowledge, skills, views and habits necessary for life and work or further education. A school is obliged to ensure continuous development of each pupil as a spiritual, physical, moral, intellectual and social being in accordance with her or his abilities and preferences. The aims of primary education are: – to arouse and cultivate in pupils an interest and independence in learning and problem solving as well as creativity, moral consciousness, aesthetic tastes and criteria, self-esteem and responsibility towards the self and nature, social, economic and political awareness, tolerance and ability to cooperate, respect for human rights, achievements and aspirations; – to teach literacy, communication, calculation, scientific and technological principles, critical observation, rational argumentation, understanding of the life we live and understanding of the interdependence of people and nature, individuals and nations. The aims and tasks of primary education shall be realised according to the established teaching plans and programmes.” Section 3 “Primary education lasts at least eight years. Primary education is in principle mandatory for all children from six to fifteen years of age. ” V. RELEVANT UNITED NATIONS MATERIALS A. International Covenant on Civil and Political Rights 87. Article 26 of the Covenant provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” B. United Nations Human Rights Committee 88. In points 7 and 12 of its General Comment No. 18 of 10 November 1989 on non- discrimination, the Committee expressed the following opinion: “ 7. ... the Committee believes that the term ‘ discrimination ’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. ... 12. ... when legislation is adopted by a State Party, it must comply with the requirement of Article 26 that its content should not be discriminatory. ... ” 89. In point 11.7 of its Views dated 31 July 1995 on Communication no. 516/1992 concerning the Czech Republic, the Committee noted: “. .. the Committee is of the view, however, that the intent of the legislature is not alone dispositive in determining a breach of Article 26 of the Covenant. A politically motivated differentiation is unlikely to be compatible with Article 26. But an act which is not politically motivated may still contravene Article 26 if its effects are discriminatory.” C. International Convention on the Elimination of All Forms of Racial Discrimination 90. The relevant part of Article 1 of this Convention provides: “... 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. ...” D. Committee on the Elimination of Racial Discrimination 91. In its General Recommendation No. 14 of 22 March 1993 on the definition of discrimination, the Committee noted, inter alia : “ 1. ... A distinction is contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination] if it has either the purpose or the effect of impairing particular rights and freedoms. This is confirmed by the obligation placed upon States parties by Article 2 § 1 (c) to nullify any law or practice which has the effect of creating or perpetuating racial discrimination. ... 2. ... In seeking to determine whether an action has an effect contrary to the [International Convention on the Elimination of All Forms of Racial Discrimination], [the Committee] will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.” 92. In its General Recommendation No. 19 of 18 August 1995 on racial segregation and apartheid, the Committee observed: “ 3. ... while conditions of complete or partial racial segregation may in some countries have been created by governmental policies, a condition of partial segregation may also arise as an unintended by-product of the actions of private persons. In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race, colour, descent and national or ethnic origin, so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds. 4. The Committee therefore affirms that a condition of racial segregation can also arise without any initiative or direct involvement by the public authorities. ...” 93. In its General Recommendation No. 27 of 16 August 2000 on discrimination against Roma, the Committee made, inter alia, the following recommendation in the education sphere: “17. To support the inclusion in the school system of all children of Roma origin and to act to reduce drop-out rates, in particular among Roma girls, and, for these purposes, to cooperate actively with Roma parents, associations and local communities. 18. To prevent and avoid as much as possible the segregation of Roma students, while keeping open the possibility for bilingual or mother-tongue tuition; to this end, to endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community, to recruit school personnel from among members of Roma communities and to promote intercultural education. 19. To consider adopting measures in favour of Roma children, in cooperation with their parents, in the field of education.” 94. In its concluding observations of 30 March 1998 following its examination of the report submitted by the Czech Republic, the Committee noted, inter alia : “13. The marginalisation of the Roma community in the field of education is noted with concern. Evidence that a disproportionately large number of Roma children are placed in special schools, leading to de facto racial segregation, and that they also have a considerably lower level of participation in secondary and higher education, raises doubts about whether Article 5 of the [International Convention on the Elimination of All Forms of Racial Discrimination] is being fully implemented.” E. Convention on the Rights of the Child 95. The relevant parts of Articles 28 and 30 of this Convention provide as follows. Article 28 “1. States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; ... (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates. ... ” Article 30 “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.” F. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 96. The relevant part of Article 4 provides: “ 1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. ... ” G. United Nations Education, Scientific and Cultural Organization ( Unesco) 97. Articles 1 and 3 of the Convention against Discrimination in Education of 14 December 1960 provide in their relevant parts as follows. Article 1 “1. For the purposes of this Convention, the term ‘ discrimination ’ includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of Article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of inflicting on any person or group of persons conditions which are incompatible with the dignity of man. ...” Article 3 “In order to eliminate and prevent discrimination within the meaning of this Convention, the States Parties thereto undertake: (a) To abrogate any statutory provisions and any administrative instructions and to discontinue any administrative practices which involve discrimination in education; (b) To ensure, by legislation where necessary, that there is no discrimination in the admission of pupils to educational institutions; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 98. The applicants complained about the length of the proceedings before the national courts. They relied on Article 6 § 1 of the Convention, which reads in its relevant parts as follows: “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 99. In its judgment of 17 July 2008, the Chamber found that Article 6 was applicable to the present case under its civil head and that the length of the proceedings had been excessive. B. The parties ’ submissions to the Grand Chamber 1. Applicability of Article 6 § 1 100. The Government, relying on the Court ’ s judgment in Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (10 July 1998, Reports of Judgments and Decisions 1998 ‑ IV), disputed the applicability of Article 6 to the proceedings conducted before the national courts upon the applicants ’ civil action. 101. The applicants argued in favour of the applicability of Article 6. 2. Merits 102. The applicants complained that the length of the proceedings, and in particular those before the Constitutional Court, had exceeded the reasonable time requirement. 103. The Government contested that argument, stressing the special role of the Constitutional Court and the fact that it had to address complex constitutional issues in the applicants ’ case. C. The Court ’ s assessment 1. As to the Government ’ s preliminary objection 104. In its judgment in Emine Araç v. Turkey ( no. 9907/02, ECHR 2008), the Court explicitly recognised, for the first time, that the right of access to higher education is a right of a civil nature and, in so doing, it abandoned the case-law of the Commission ( see André Simpson v. the United Kingdom, no. 14688/89, Commission decision of 4 December 1989, Decisions and Reports 64, p. 188 ), which had concluded that Article 6 was inapplicable to proceedings concerning the laws on education (on the ground that the right not to be denied primary education fell within the domain of public law). The Court considers that the same reasoning applies a fortiori in the context of primary education ( argumentum a maiore ad minus ). 105. In addition, in the Kök v. Turkey judgment (no. 1855/02, § 36, 19 October 2006), the Court found that, where a State confers rights which can be enforced by means of a judicial remedy, these can, in principle, be regarded as civil rights within the meaning of Article 6 § 1 (see, along the same lines, Tinnelly & Sons Ltd and Others and McElduff and Others, cited above, § 61). 106. As to the present case, it seems clear that a “dispute” arose in respect of the applicants ’ initial and then continuing placement in Roma-only classes during their schooling in primary schools. The proceedings before the domestic courts concerned the applicants ’ allegations of infringement of their right not to be discriminated against in the sphere of education, their right to education and their right not to be subjected to inhuman and degrading treatment. The applicants raised their complaints before the regular civil courts and the Constitutional Court and their complaints were examined on the merits. 107. Furthermore, the applicants ’ right not to be discriminated against on the basis of race was clearly guaranteed under Article 14 § 1 of the Constitution and, as such, enforceable before the regular civil courts in the national legal system (see, mutatis mutandis, Tserkva Sela Sosulivka v. Ukraine, no. 37878/02, § 42, 28 February 2008, and Gülmez v. Turkey, no. 16330/02, § 29, 20 May 2008). In view of the above, the Court concludes that Article 6 § 1 is applicable in the instant case. 2. Merits 108. The Court reiterates that the reasonableness of the length of these proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the applicants ’ conduct and that of the competent authorities, and the importance of what was at stake for the applicants in the litigation (see Süßmann v. Germany, 16 September 1996, § 48, Reports 1996 ‑ IV, and Gast and Popp v. Germany, no. 29357/95, § 70, ECHR 2000 ‑ II ). In this connection, the Court notes that the proceedings commenced on 19 April 2002 and ended with the Constitutional Court ’ s decision of 7 February 2007. While the case was speedily decided by the trial and appellate court, where the proceedings lasted for some seven months, the same cannot be said of the length of the proceedings before the Constitutional Court, which lasted for four years, one month and eighteen days. 109. Although the Court accepts that the Constitutional Court ’ s role of guardian of the Constitution sometimes makes it particularly necessary for it to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms, the Court finds that a period exceeding four years to decide on the applicants ’ case and in particular in view of what was at stake, namely the right to education, appears excessive. 110. Accordingly, the Court considers that in the present case there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings before the Constitutional Court. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL No. 1 111. The applicants complained that they had been denied their right to education and discriminated against in this respect. They relied on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, which read as follows: Article 14 – Prohibition of discrimination “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 2 of Protocol No. 1 – Right to education “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 Chamber judgment 112. The Chamber found no violation of Article 2 of Protocol No. 1 taken alone or in conjunction with Article 14 of the Convention. It held that the applicants had been assigned to Roma-only classes because they lacked sufficient command of the Croatian language and that this measure had been justified. B. The parties ’ submissions to the Grand Chamber 1. The applicants 113. As regards the nine applicants (the second to tenth applicants) who had attended Podturen Primary School, the applicants submitted that in the school year 2000/01, when they had all attended the second grade, a majority of them had been assigned to a Roma-only class. The following year, all nine of the applicants attending Podturen Primary School had been assigned to a Roma-only class with nineteen Roma pupils. At the same time there was only one other class in the third grade, consisting of nineteen non-Roma pupils. In the school year 2002/03 all nine applicants had been assigned together to a Roma-only class in the fourth grade. In the school year 2003/04 they had all been assigned to a mixed class only because there had not been enough Roma pupils to form a Roma-only class. 114. As regards the five applicants (the eleventh to fifteenth applicants) who attended Macinec Primary School, the applicants submitted that they had been assigned to a Roma-only class during their entire schooling. Most of the other Roma pupils had been assigned to Roma-only classes. In total, out of 153 Roma pupils in the first four grades, 137 had been assigned to Roma-only classes. In the fourth grade, out of 44 pupils, 21 were Roma, all assigned to a Roma-only class. The applicants argued that the Government had failed to present any consistent and rational explanation for forming a Roma-only class in the fourth year of schooling in Macinec Primary School since, in the applicants ’ view, by then all their language problems should have already been adequately remedied. The number of Roma-only classes in Croatia had increased from 27 in 2004 to 68 in 2008, 62 of which were in Međimurje County. 115. The applicants stressed, in particular, that the method used by the school authorities, allegedly to improve their language skills, had been inadequate. In their opinion the best method of integrating children with insufficient language proficiency would have been to place them in classes together with children who spoke the language of instruction because that, coupled with additional lessons in Croatian, would have been the easiest and fastest way for the applicants to learn Croatian. The applicants argued that it was critical to ensure that children who spoke a different language at home were included in groups that could provide good role models in terms of the majority language and created the best conditions for their language needs. They maintained that various research reports and expert bodies within the Council of Europe, the European Union and the United Nations recommended an integrative approach in the field of education of Roma children. 116. The applicants argued that there had been no specific programme in the above respect. They admitted, however, that the sixth, seventh, tenth and twelfth to fifteenth applicants had been provided with additional lessons in Croatian. They also argued that they had been provided with a substandard curriculum taught in Roma-only classes. 117. The applicants claimed that there had been no legal basis for assigning them to a Roma-only class. They argued that there had been no clear, accessible and foreseeable procedures regarding the assignment of pupils to special classes, either upon their enrolment or at subsequent stages in their education. In their view the tests employed as a part of the enrolment procedure were not designed to assess a child ’ s knowledge of the Croatian language but as an orientation point in determining the child ’ s psycho- physical status. 118. The applicants submitted that, apart from a general grading system, there had been no other specialised periodic assessment of their progress in acquiring an adequate command of the Croatian language. The grading scale was from one to five, and the lowest pass mark was two. They further argued that even when they had achieved a pass mark in the Croatian language they had not been transferred to a mixed class. 119. As a rule, their transfer to a mixed class had not been considered. On the contrary, the school authorities had refused to transfer them, claiming that the principle of homogeneity of a class was paramount. 120. The applicants claimed that there had been no specific measures in place for improving their poor school attendance and high drop-out rate, other than sanctions against pupils and parents. 121. The applicants submitted that there had been Roma assistants in the 1990s and that recently they had been reintroduced, but that both times this had been without a legal basis and without clear and objective criteria for hiring them that would have ensured their competence and positive results. 122. They further argued that they had not taken part in any extracurricular activities in an ethnically/racially mixed group organised by the school. They pointed to the lack of systematic and structured approach to the integration of Roma children into mainstream classes. Even if ethnically mixed extracurricular activities existed, they would be no substitute for complete classroom integration. 2. The Government 123. The Government firstly pointed out that the applicants had not been deprived of the right to attend school and receive education since they had all enrolled in primary school at the age of seven, like all children in Croatia, and had attended school until they reached the age of fifteen, after which schooling was no longer mandatory. The Government admitted that it was possible that the curriculum in Roma-only classes was reduced by up to 30% in relation to the regular, full curriculum. They argued that this was admissible under relevant domestic laws, and that such a possibility had not been reserved for Roma-only classes but was applied in respect of all primary school classes in Croatia, depending on the particular situation in a given class. Furthermore, the Roma-only classes were by no means “special” classes of any kind. They were ordinary classes in ordinary schools and were created only in schools where the proportion of Roma pupils was significant or where they represented a majority of pupils in a given generation, and then only in respect of those Roma pupils who also lacked adequate command of the Croatian language. In Podturen Primary School the number of Roma children in the lower grades varied from 33 % to 36%. In 2001 the total number of pupils had been 463, of whom 47 were Roma. There had been only one Roma-only class, with 17 pupils, while the remaining 33 Roma pupils had attended mixed classes. Since 2003 there had been no Roma-only classes in that school. In Macinec Primary School the number of Roma children in the lower grades varied from 57 % to 75%. Roma-only classes were formed in the lower grades and only exceptionally in the upper grades. All classes in the two final grades were mixed. In 2001 the total number of pupils had been 445, of whom 194 were Roma. There had been six Roma-only classes, with 142 pupils, while the remaining 52 Roma pupils had attended mixed classes. 124. The Government submitted that the applicants had been assigned to Roma-only classes on the basis of section 2 of the Primary Education Act and the Rules on the number of pupils in regular and multi- grade classes. Under section 2 of the Primary Education Act the purpose of primary education was to ensure the continuing development of each pupil as a spiritual, physical, moral, intellectual and social being, according to his or her capabilities and affinities. In the Government ’ s view this could only be achieved in a permanent group of pupils of approximately the same age and knowledge. The same legal basis and the same criteria had been applied in respect of all other pupils. The applicants had been submitted to the same tests as all other children enrolling primary school. The applicants had been assigned to Roma-only classes on the basis of their insufficient knowledge of the Croatian language in order to address their special needs and to ensure an equal approach, which was possible only where the majority of them had the same initial knowledge of the Croatian language and psycho-physical readiness to attend primary school. 125. All but the second and tenth applicants had been assigned to a Roma-only class upon their enrolment in primary school. The second and tenth applicants were initially enrolled in a mixed class. They failed the first grade with negative marks in, inter alia, the Croatian language. After that, they were assigned to a Roma-only class. 126. In respect of the applicants enrolled in Macinec Primary School, the Government submitted that the enrolment procedure included the psycho-physical appraisal of the children by a panel composed of a physician, a psychologist, a school counsellor ( pedagog ), a defectologist and a teacher, in the presence of at least one of the child ’ s parents. 127. In respect of the applicants enrolled in Podturen Primary School, the Government submitted that the records concerning the enrolment of the applicants who had attended that school could not be found owing to the passage of time. They did, however, submit a testimony of a teacher who had led a three-month pre-school programme for Roma children and who said that at the end of that programme a teacher would assess each child ’ s language level, after which the child would be placed in a mixed or Roma-only class accordingly. 128. The Government submitted school records showing that all the applicants, both in Podturen and Macinec Primary Schools, had been provided with additional lessons in the Croatian language. They had been able to participate in various extracurricular activities carried out in the Croatian language, some of which were particularly focused on the improvement of language skills (such as recitals and reading). Furthermore, in 2002 in Podturen Primary School and in 2003 in Macinec Primary School, Roma assistants were recruited to help children in Roma-only classes to improve their knowledge. 129. The Government submitted that the assessment of the applicants ’ progress had been a part of the regular procedure for the evaluation of pupils, as in all other schools in Croatia. In the lower grades, evaluation in all subjects was done by the class teacher. A final mark was given at the end of each school year on the basis of all marks given during the school year. The basic elements for determining a mark were: knowledge and understanding of the subject matter, oral and written expression, applying acquired knowledge in practice and creative use of it, development of skills, participation in classes and development of a pupil ’ s psycho - physical abilities and capacities. In particular, elements for assessing knowledge of the Croatian language included reading and writing skills, oral and written expression, vocabulary and grammar, reading of books, and homework. A mark combined a number of factors, among which the most important for pupils in the lower grades were motivation and personal development in respect of each subject. The marks were given according to the individual capacity of each child. Therefore, the good marks given to some of the applicants after they had failed a grade or repeatedly failed a grade did not necessarily mean that they had a good command of the Croatian language, but that they had made progress. 130. As to the individual circumstances of the applicants in the present case, the Government submitted that their progress had in fact been very slow. All of the applicants had failed several grades in succession. Sometimes it had taken them two or three years to complete one grade. As an example they explained that the twelfth applicant had had to repeat the first grade twice, after which he scored a three (good) in Croatian. However, in the first grade, pupils were taught basic reading and writing skills and a majority of them received high marks. Therefore a three in Croatian after twice repeating the first grade could not be seen as proof of an adequate knowledge of the Croatian language. It had then taken him another three years to complete the second grade. 131. Furthermore, there were several procedural safeguards. Each parent had the right to challenge a teacher ’ s assessment. A school headmaster was obliged to examine every complaint. Where the majority of parents at a school meeting agreed that a particular teacher was not objective in his or her assessment, the class teacher had to examine the complaint at a meeting of the school board. Where the school board found the complaint founded, the headmaster was obliged to take the necessary measures, as prescribed by law. Furthermore, each pupil had the right to complain about the marks awarded, and the right to ask for a special panel to assess his or her knowledge. As to the applicants in the present case, there had never been any complaints about the assessment of their knowledge or their placement in a Roma-only class. Likewise, their parents had never asked for the transfer of their children to a mixed class. 132. The Government submitted school records showing that a number of measures had been adopted. Firstly, the class teachers encouraged pupils to attend school. The schools held regular meetings of class teachers with parents, as well as individual parent-teacher meetings for pupils who had problems with school attendance, but the parents of the pupils concerned mostly ignored invitations to both types of meeting. The schools also employed Roma assistants who served, inter alia, as mediators between the schools and parents and would visit parents and explain the necessity and importance of education for their children. 133. The school authorities also regularly informed the applicants and their parents that the applicants could continue their education at the same school even after the age of 15. In addition, the applicants also had a possibility of attending evening classes, free of charge, in a nearby town in order to complete their primary education. Three applicants enrolled in the evening programme, but only one actually completed it. In respect of the fifth applicant, the school authorities had informed the competent social welfare centre of the attendance problem, so that appropriate steps could be taken. The teachers had been involved in resolving various problems encountered in respect of the applicants. When a class teacher of the tenth applicant had noticed that he had problems with his sight, the teacher had taken him to an ophthalmologist and made sure he obtained adequate glasses. 134. The Government submitted that all Roma children, regardless of their placement in a particular class, were integrated with other children during their schooling in numerous ways, for example by their active involvement in all extracurricular activities organised at schools (such as singing, dancing, handicraft and mixed activities), as well as their participation in all outdoor activities organised by schools (such as swimming lessons, excursions to towns, visits to various sites, monuments and institutions, collection of litter, ecological activities and various competitions), and participation with other pupils in the social activities organised at schools (such as Christmas and New Year ’ s celebrations, School Day celebrations, Sports Day and Bread Day), plus the fact that they shared the same common school facilities, such as the canteen and playgrounds. 135. The schools in question also organised special activities for all pupils to improve non-Roma children ’ s understanding of Roma traditions and culture. These activities included celebrating Roma Day, organising visits to Roma settlements, informing pupils about the Romani language and customs and the problems Roma faced in everyday life, and encouraging Roma pupils to publish texts and poems in school magazines. 3. The third-party interveners (a) The Government of the Slovak Republic 136. The Government of the Slovak Republic recognised the need to address the learning difficulties of certain pupils, such as lack of proficiency in the language of instruction at schools. They found different compensatory measures adopted in that respect constructive. They referred to the margin of appreciation afforded to the States in the sphere of education and stressed that the States should not be prohibited from setting up separate classes at different types of school for children with difficulties, or from implementing special educational programmes to respond to special needs. 137. Although the special needs of children with learning difficulties had to be addressed, that could not take precedence over the effective functioning of an education system, which had to remain compact and not fragmented according to the needs of each individual pupil. Thus, the placing of a child in a different class on objective and legitimate grounds, such as lack of proficiency in the language of instruction, could not be considered discriminatory. The other relevant factors in respect of the present case were the attitudes of parents and the possibility of transferring pupils to mixed classes, as well as the content of the school curriculum. (b) Interights 138. Interights stressed the necessity for the Court to develop a comprehensive body of case-law on the substantive aspects of the right to education. The obligation to respect the right to education required States Parties to avoid measures that hindered or prevented the enjoyment of this right. The obligation to ensure that education was both adequate and appropriate required States to take positive measures that would enable and help individuals and communities to fully enjoy the right to education. The principal aims of education could only be achieved where children from different cultural backgrounds were educated together in integrated schools. 139. Access to education without discrimination implied that children should have the opportunity to participate in, and benefit from, a mainstream educational system that ensured their integration into society. All international standards on education were buttressed by the principle of non-discrimination. Because of the paramount importance of the right to education, the failure to secure that right to children of ethnic or linguistic minorities would undermine the ability of those minorities to break the cycle of poverty and marginalisation which many of them suffered from. 140. There were effective and practical alternatives to segregation in schools on the basis of linguistic and cultural differences. Segregation could effectively deny a minority their right to learn the majority language with consequential negative impact on their ability to benefit from education and to effectively participate in, and integrate into, general society. State-enforced segregation on the basis of culture or ethnicity was not permissible. While States should not segregate or exclude pupils on the basis of language in a discriminatory manner, they needed to adopt certain measures which would temporarily affect the segregation of pupils based on insufficient command of the language of instruction. However, a very narrow margin of appreciation was to be applied in that sphere in order to ensure that the segregation occurred only on the basis of valid linguistic needs and did so in a manner that ensured that pupils should be fully integrated on an appropriate and timely basis. (c) Greek Helsinki Monitor 141. Referring to the Court ’ s case-law concerning the right to education and in particular to the judgments in D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV ) and Sampanis and Others v. Greece (no. 32526/05, 5 June 2008), the Greek Helsinki Monitor stressed the importance of tests aimed at assessing the educational level of children upon their enrolment in schools, as well as the need to ultimately assign all Roma children to ordinary, mainstream classes. He also highlighted that the principle of integrated education could be diverged from only in certain exceptional circumstances and that only the integrative educational policy was compatible with the role of the member States ’ educational systems. 142. The interveners further relied on the Action Plan on Improving the Situation of Roma and Sinti within the OSCE (Organization for Security and Co - operation in Europe) area, which urged the member States to “develop and implement comprehensive school desegregation programmes aimed at: (1) discontinuing the practice of systemically routing Roma children to special schools or classes; and (2) transferring Roma children from special schools to mainstream schools”. The interveners also relied on the relevant Council of Europe sources, cited above. C. The Court ’ s assessment 143. The applicants in the present case made complaints under Article 2 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention, claiming that the fact that they had been allocated to Roma-only classes during their primary education violated their right to receive an education and their right not to be discriminated against. However, the Grand Chamber sees this case as raising primarily a discrimination issue. 144. In this connection, the Court reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999 ‑ III; and Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005 ‑ XII ). 145. The complaint in the present case concerns alleged discrimination in respect of the applicants ’ right to education on account of their having been assigned, for part of their schooling, to separate classes constituted, according to them, on the basis of ethnic criteria. The Government, for their part, claimed that the applicants had been placed in separate classes on account of their inadequate command of the Croatian language. It follows that the central question to be addressed in the present case is whether adequate steps were taken by the school authorities to ensure the applicants ’ speedy progress in acquiring an adequate command of Croatian and, once this was achieved, their immediate integration into mixed classes. In this connection, the curriculum followed by the applicants and the procedures concerning their transfer to mixed classes appear of high importance. Thus, the alleged inequality of treatment in the enjoyment of the right to education is a fundamental aspect of the present case and the issues pertinent to this case are to be analysed from the standpoint of Article 1 4 of the Convention read in conjunction with Article 2 of Protocol No. 1. 146. The right to education, as set out in the first sentence of Article 2 of Protocol No. 1, guarantees everyone within the jurisdiction of the Contracting States “a right of access to educational institutions existing at a given time”, but such access constitutes only a part of the right to education. For that right “to be effective, it is further necessary that, inter alia, the individual who is the beneficiary should have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in one form or another, official recognition of the studies which he has completed” (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 30-32, §§ 3-5, Series A no. 6 – “the ‘ Belgian linguistic ’ case”; Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 52, Series A no. 23; and Leyla Şahin v. Turkey [GC], no. 44774/98, § 152, ECHR 2005 ‑ XI ). 147. While the case at issue concerns the individual situation of the fourteen applicants, the Court nevertheless cannot ignore that the applicants are members of the Roma minority. Therefore, in its further analysis the Court shall take into account the specific position of the Roma population. The Court has noted in previous cases that as a result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly ’ s Recommendation No. 1203 (1993) on Gypsies in Europe, cited in paragraph 81 above, and point 4 of its Recommendation No. 1557 (2002) on the legal situation of Roma in Europe, cited in paragraph 8 3 above). They therefore require special protection. As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies, this protection also extends to the sphere of education. The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance (see D.H. and Others, cited above, § 182 ). 148. Lastly, as noted in previous cases, the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, ECHR 2001 - I, and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). In Chapman, the Court also observed that there could be said to be an emerging international consensus among the member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community (see D.H. and Others, cited above, § 181). 1. Whether there was a difference in treatment 149. According to the Court ’ s well-established case-law, 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, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005 ). 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 the ‘ Belgian linguistic ’ case, cited above, p. 34, § 10; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV; and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI ). Moreover, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of ethnic origin as compatible with the Convention (see Timishev, cited above, § 56 ). 150. The Court has also accepted that a general policy or measure which is apparently neutral but has disproportionately prejudicial effects on persons or groups of persons who, as for instance in the present case, are identifiable only on the basis of an ethnic criterion, may be considered discriminatory notwithstanding that it is not specifically aimed at that group (see, mutatis mutandis, Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001; Hoogendijk v. the Netherlands (dec.), no. 58461/00, 6 January 2005; and Sampanis and Others, cited above, § 68 ), unless that measure is objectively justified by a legitimate aim and the means of achieving that aim are appropriate, necessary and proportionate. Furthermore, discrimination potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII ). Where an applicant produces prima facie evidence that the effect of a measure or practice is discriminatory, the burden of proof will shift on to the respondent State, to whom it falls to show that the difference in treatment is not discriminatory (see D.H. and Others, cited above, § § 180 and 189). 151. The Court points out at the outset that it has recently adopted two judgments in the sphere of education of Roma children finding that the applicants were discriminated against on the basis of their ethnic origin, namely D.H. and Others and Sampanis and Others (both cited above). The D.H. and Others judgment 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. In Sampanis and Others the Court found that the practice of first denying Roma children enrolment in school and their subsequent placement in special classes located in an annex to the main building of a primary school, coupled with a number of racist incidents in the school instigated by the parents of non-Roma children, also amounted to discrimination based on the applicants ’ Roma origin. 152. The present case is to be distinguished from the above two cases, in particular regarding the relevance of the statistics in the three cases, which could have a bearing on whether there is prima facie evidence of discrimination and consequently on the burden of proof. In D.H. and Others (cited above, § 18) the Court established that between 50 % and 70% of Roma children in the Czech Republic attended special schools for pupils with learning difficulties, while in Sampanis and Others (cited above, § 81) all Roma children attending the school at issue were allocated to a separate establishment. As to the present case, the Court firstly notes that the applicants, unlike in the Sampanis and Others case, attended regular primary schools and that the Roma-only classes were situated in the same premises as other classes. The proportion of Roma children in the lower grades in Macinec Primary School varies from 57 % to 75%, while in Podturen Primary School it varies from 33 % to 36%. The data submitted for the year 2001 show that in Macinec Primary School 44% of pupils were Roma and 73% of those attended a Roma-only class. In Podturen Primary School 10% of pupils were Roma and 36% of Roma pupils attended a Roma-only class. These statistics demonstrate that only in Macinec Primary School did a majority of Roma pupils attend a Roma-only class, while in Podturen Primary School the percentage was below 50%. This confirms that it was not a general policy to automatically place Roma pupils in separate classes in both schools at issue. Therefore, the statistics submitted do not suffice to establish that there is prima facie evidence that the effect of a measure or practice was discriminatory. 153. However, indirect discrimination may be proved without statistical evidence (see D.H. and Others, cited above, § 188). In this connection, the Court notes that the measure of placing children in separate classes on the basis of their insufficient command of the Croatian language was applied only in respect of Roma children in several schools in Međimurje County, including the two primary schools attended by the applicants in the present case. Thus, the measure in question clearly represents a difference in treatment. 154. As regards the grounds for the applicants ’ placement in separate classes, the Court is also mindful of the general comments made in the third ECRI report on Croatia, published on 14 June 2005 (see paragraph 67 above), which refers to “ allegations that when the authorities tried to introduce mixed classes instead of separate classes in some schools, they came up against opposition from the non-Roma parents, who apparently signed petitions against this measure, with the result that the separate classes were maintained”. The Commissioner for Human Rights, in the report on his visit to Croatia (see paragraph 72 above), referred to a similar situation in the following passage: “The year 2002 saw the worsening of problems around the town of Čakovec, which applied a practice of separating Roma and non-Roma pupils in schools. An atmosphere of intolerance took hold; non-Roma parents went so far as to stage a demonstration in front of a school at the start of the 2002/03 school year, denying entry to the Roma children.” 155. In the circumstances of the present case, and even without any discriminatory intent on the part of the relevant State authorities, the fact that the measure in question was applied exclusively to the members of a singular ethnic group, coupled with the alleged opposition of other children ’ s parents to the assignment of Roma children to mixed classes, calls for an answer from the State to show that the practice in question was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate, necessary and proportionate. 2. Whether the difference in treatment had an objective and reasonable justification 156. According to the Court ’ s case-law, a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see, among many other authorities, Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999-I; Stec and Others, cited above, § 51; and D.H. and Others, cited above, § 196 ). Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see Sampanis and Others, cited above, § 69). 157. The Court considers that temporary placement of children in a separate class on the ground that they lack an adequate command of the language is not, as such, automatically contrary to Article 14 of the Convention. It might be said that in certain circumstances such placement would pursue the legitimate aim of adapting the education system to the specific needs of the children. However, when such a measure disproportionately or even, as in the present case, exclusively, affects members of a specific ethnic group, then appropriate safeguards have to be put in place (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports 1996 ‑ IV; Connors, cited above, § 83; and Timishev, cited above, § 56). Thus, the Court must now examine whether there existed such safeguards at each stage of the implementation of the measures complained of and whether they were effective. (a) Initial placement of the applicants in separate classes 158. The Court first notes that there existed no clear and specific legal basis for placing children lacking an adequate command of the Croatian language in separate classes. The laws relied on by the Government, namely, the Primary Education Act and the Rules on the number of pupils in regular and multi- grade classes, did not provide for separate classes for children lacking proficiency in the Croatian language. The Government have not shown that this practice has been applied in respect of any other pupils lacking an adequate command of the Croatian language in any other part of Croatia, and not only in respect of Roma children in several schools in Međimurje County, including the two schools in question. Consequently, the impugned measures can hardly be seen as part of a common and general practice designed to address the problems of children who lack an adequate command of the Croatian language. 159. Moreover, the tests applied for deciding whether to assign pupils to Roma-only classes are not specifically designed to test the children ’ s command of the Croatian language. Where the State authorities opt to place children in a separate class on the ground that the children lack an adequate command of the Croatian language, the testing of such children should be specifically designed to assess their knowledge of the language. In its Opinion on Croatia, adopted on 6 April 2001, the Advisory Committee on the Framework Convention for the Protection of National Minorities stressed that “placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests” (see paragraph 68 above). 160. In the present case no specific testing of the applicants ’ command of the Croatian language took place. The testing of the applicants who attended Macinec Primary School (the eleventh to fifteenth applicants) was designed to test the children ’ s general psycho-physical condition, not their knowledge of the Croatian language in particular. As regards the applicants who attended Podturen Primary School (the second to tenth applicants), the Government have not shown that they were ever effectively tested in this respect (see paragraph 12 7 above). 161. Furthermore, certain inconsistencies in respect of some individual applicants cannot be ignored. For example, both the second and the tenth applicants were initially placed in a mixed class in Podturen Primary School upon enrolling in the first grade in the school year 1997/98. Only after two years were they transferred to a Roma-only class. Assuming that, as the Government contend, insufficient knowledge of the Croatian language was the reason for placing Roma children in Roma-only classes, it is difficult to understand why the second and the tenth applicants would have had sufficient knowledge of the Croatian language at the age of seven, when they started primary school, but not two years later, when they were transferred to a Roma-only class. It is equally improbable that it should have taken two years for their respective class teachers to note the applicants ’ insufficient command of the language. Even if these two applicants might have had some learning difficulties, as suggested by the fact that they failed to go up a grade for the initial two years of their schooling, these difficulties would not appear to have been adequately addressed simply by placing the applicants concerned in a Roma-only class. The tenth applicant, for his part, was offered an adapted curriculum by reason of his developmental difficulties only in the school year 2005/06, that is to say not until eight years after he enrolled in primary school and when he had already reached the age of 15 and thus soon to leave school. 162. The Court does not consider satisfactory the explanation given by the Government that, although these two applicants ’ command of the Croatian language had been inadequate when they enrolled in school, in those years there were no Roma-only classes in their school. For the fact remains that the applicants ’ insufficient command of the Croatian language was not adequately addressed for the first two years of their schooling. (b) Curriculum 163. As regards the curriculum provided in Roma-only classes, the Government first argued that it was the same as in any other classes of the same grade and that all subjects were taught in Croatian. Yet, at the same time they contended that the applicants ’ command of the Croatian language had been insufficient to follow the regular school curriculum with the other pupils. The Government also admitted that the curriculum in Roma-only classes might have been reduced by up to 30% compared with the full standard curriculum, such a reduction being permissible under national laws and not reserved for Roma-only classes but accepted and allowed in respect of any primary school class in Croatia, depending on the abilities of the pupils in a given class. 164. The Court notes that if the applicants were taught the same curriculum as all other pupils, there appears to be no reason to have placed them in separate classes. However, if they were placed in separate classes because they lacked an adequate command of the Croatian language, the regular curriculum, taught in Croatian, could not possibly address their needs. Furthermore, the Government ’ s contention that the applicants followed a regular curriculum is difficult to reconcile with the comments submitted on 26 September 2001 by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “ [t] he Ministry of Education and Sports, in cooperation with the local administration, has taken a number of measures for this purpose [ namely, to overcome the language barrier ] – additional assistance to overcome problems concerning the following and comprehension of school lessons, adaptation of curricula to the needs of Roma children ... ” (see paragraph 69 above). Thus, it would appear that the Roma children followed an “adapted curriculum”, though it is not clear what exactly that included. 165. As regards the fact that the curriculum taught in Roma-only classes might have been reduced by 30%, the Court first notes that the Government have not indicated the exact legal basis for such a reduction. Secondly, and more importantly, they have not shown how the mere fact of a possible reduction of the curriculum could be considered an appropriate way to address the applicants ’ alleged lack of proficiency in Croatian. Since, as indicated by the Government, teaching in the schools in question was in Croatian only, the State in addition had the obligation to take appropriate positive measures to assist the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons, so that they could be quickly integrated into mixed classes. 166. In this connection, the Court refers to the above-mentioned comments submitted by the Croatian Government in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, according to which “those children who do not speak the Croatian language may well be enrolled in special classes where they receive special attention with a view to learning the Croatian language” (see paragraph 69 above). The applicants, however, once assigned to Roma-only classes, were not provided with any specific programme in order to address their alleged linguistic deficiencies. Nor have the Government shown the existence of any written instructions or guidelines concerning the programme to be followed by pupils assigned to Roma-only classes. 167. As to the existence of additional Croatian classes, which, according to the Government ’ s submission, was one of the means by which the applicants ’ language deficiencies had been addressed, it would appear that the third, fourth and fifth applicants were never provided with such classes, although all three of them attended a Roma-only class for at least the first two years of their primary education. 168. As regards the sixth to eleventh applicants, it was not until their third grade that they were offered additional Croatian language lessons, although they were all placed in a Roma-only class from their first grade. 169. The thirteenth to fifteenth applicants were offered additional language classes only in the first year of their schooling. Yet they all stayed in a Roma-only class for the rest of their primary schooling. 170. Only the twelfth applicant was systematically offered additional Croatian language classes in the first, second and third grade. However, he spent his entire primary schooling in a Roma-only class. 171. In any event, even such additional classes in Croatian could at best only compensate in part the lack of a curriculum specifically designed to address the needs of pupils placed in separate classes on the ground that they lacked an adequate command of Croatian. (c) Transfer and monitoring procedure 172. As to the transfer from Roma-only to mixed classes, the Government, both in the proceedings before the national courts and before this Court, argued that the homogeneity of each class had been an important factor in not transferring the applicants to a mixed class. However, as indicated above, the placement of the applicants in Roma-only classes could be seen as pursuing a legitimate aim only if it served the purpose of bringing their command of the Croatian language up to an adequate level and then securing their immediate transfer to a mixed class. 173. In this respect, it is to be noted that no programme was established for addressing the special needs of Roma children lacking language skills that included a time frame for the various phases of acquisition of the necessary language skills. As a result, the Court is of the opinion that the time the applicants spent in Roma-only classes appears to fall short of the requirement that their immediate and automatic transfer be ensured as soon as adequate language proficiency was attained. 174. In the above-mentioned comments in response to the Opinion of the Advisory Committee on the Framework Convention for the Protection of National Minorities, the Government stated that “ [t] his practice [of placing of Roma-children in separate classes] is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities” (see paragraph 69 above). The Court also refers to the Opinion on Croatia of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 1 October 2004, according to which “pupils should not be placed in such separate remedial classes on the basis of their affiliation with a national minority but rather on the basis of the skills and needs of the individuals concerned, and where such placing is found necessary, it should be for a limited period only” (see paragraph 70 above). 175. Yet the applicants in the present case each spent a substantial period of their education in Roma-only classes. The eleventh to fifteenth applicants spent all eight years of their schooling in a Roma-only class, while the second to tenth applicants attended at times both Roma-only and mixed classes. However, no particular monitoring procedure was in place. Although some of the applicants at times attended mixed classes, the Government failed to show that any individual reports were drawn up in respect of each applicant and his or her progress in learning Croatian. Such reports appear necessary in order to ensure objectivity as well as to identify problem areas which could then be addressed, if needed, with additional measures. The lack of a prescribed and transparent monitoring procedure left a lot of room for arbitrariness. (d) Poor school attendance and high drop-out rate 176. One of the problems highlighted in the reports of the Council of Europe bodies concerning Croatia was the poor school attendance of Roma children and their high drop-out rate. In the second ECRI report on Croatia, published on 3 July 2001, it is stated that “many Roma/Gypsy children do not go to school, having either dropped out or having never attended” (see paragraph 66 above). This observation was confirmed in the third ECRI report on Croatia, published on 14 June 2005, according to which “ [ m ] any Roma children leave school at a very early age” (see paragraph 67 above). The statistics submitted by the applicants for Međimurje County and not refuted by the Government show a drop-out rate of 84% for Roma pupils before completing primary education. The applicants in the present case, without exception, left school at the age of 15 without completing primary education. Their school reports show poor attendance. 177. While the Croatian authorities cannot be held to be the only ones responsible for the fact that so many pupils failed to complete primary education or to attain an adequate level of language proficiency, such a high drop-out rate of Roma pupils in Međimurje County called for the implementation of positive measures in order, inter alia, to raise awareness of the importance of education among the Roma population and to assist the applicants with any difficulties they encountered in following the school curriculum. Therefore, some additional steps were needed in order to address these problems, such as active and structured involvement on the part of the relevant social services. However, according to the Government, the social services had been informed of the pupil ’ s poor attendance only in the case of the fifth applicant. No precise information was provided on any follow-up. (e) The involvement of the applicants ’ parents 178. The Government emphasised the parents ’ passivity and lack of objections in respect of the placement of their children in separate classes, as well as on the fact that they had not requested their transfer to mixed classes. In this connection, the following conclusions reached in the D.H. and Others case appear to be of relevance: “202. As regards parental consent, the Court notes the Government ’ s submission that this was the decisive factor without which the applicants would not have been placed in special schools. In view of the fact that a difference in treatment has been established in the instant case, it follows that any such consent would signify an acceptance of the difference in treatment, even if discriminatory, in other words a waiver of the right not to be discriminated against. However, under the Court ’ s case-law, the waiver of a right guaranteed by the Convention – in so far as such a waiver is permissible – must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent ( see Pfeifer and Plankl v. Austria, 25 February 1992, §§ 37-38, Series A no. 227 ) and without constraint ( see Deweer v. Belgium, 27 February 1980, § 51, Series A no. 35 ). 203. In the circumstances of the present case, the Court is not satisfied that the parents of the Roma children, who were members of a disadvantaged community and often poorly educated, were capable of weighing up all the aspects of the situation and the consequences of giving their consent. ... 204. In view of the fundamental importance of the prohibition of racial discrimination (see Nachova and Others, cited above, § 145, and Timishev, cited above, § 56), the Grand Chamber considers that, even assuming the conditions referred to in paragraph 202 above were satisfied, no waiver of the right not to be subjected to racial discrimination can be accepted, as it would be counter to an important public interest (see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 -XII ).” 179. The same applies to the failure of the applicants ’ parents in the present case to raise objections to the placement of their children in Roma-only classes and their failure to seek their transfer to mixed classes. (f) Conclusion 180. As appears from the Court ’ s judgment in D.H. and Others (cited above), the documentation produced by ECRI and the report of the Commissioner for Human Rights of the Council of Europe on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (dated 15 February 2006; see paragraphs 7 3 to 76 above ), a number of European States encounter serious difficulties in providing adequate schooling for Roma children. The Croatian authorities have sought to tackle the problem. However, in their attempts to achieve the social and educational integration of the disadvantaged group which the Roma form, they have had to contend with numerous difficulties as a result of, inter alia, the cultural specificities of that minority and an alleged degree of hostility on the part of the parents of non-Roma children. As the Grand Chamber noted in the above - mentioned D.H. and Others judgment, the choice of the best means to address learning difficulties of children lacking proficiency of the language of instruction is not an easy one. It entails a difficult balancing exercise between the competing interests. As to the setting and planning of the curriculum, this mainly involves questions of expediency on which it is not for the Court to rule ( see D.H. and Others, cited above, § 205, and Valsamis v. Greece, 18 December 1996, § 28, Reports 1996-VI). 181. Nevertheless, whenever discretion capable of interfering with the enjoyment of a Convention right is conferred on national authorities, the safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation (see Buckley, cited above, § 76, and Connors, cited above, § 83). 182. The facts of the instant case indicate that the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group (see, mutatis mutandis, Buckley, cited above, § 84, and Connors, cited above, § 84). Furthermore, as a result of the arrangements the applicants were placed in separate classes where an adapted curriculum was followed, though its exact content remains unclear. Owing to the lack of transparency and clear criteria as regards transfer to mixed classes, the applicants stayed in Roma-only classes for substantial periods of time, sometimes even during their entire primary schooling. 183. A very positive aspect is the possibility of further education for Roma children who failed to complete primary education by the age of 15. After leaving primary school, the applicants had the possibility of enrolling in the government-funded evening school in Čakovec (a nearby town) in order to complete their education. Although all expenses were covered by the Government, only three of the applicants availed themselves of this opportunity, and only one actually completed the evening school. However, most of these developments took place after the period that is to be examined in respect of the applicants in the present case. They cannot repair the above-described deficiencies in the applicants ’ education. 184. In sum, in the circumstances of the present case and while recognising the efforts made by the Croatian authorities to ensure that Roma children receive schooling, the Court considers that there were at the relevant time no adequate safeguards in place capable of ensuring that a reasonable relationship of proportionality between the means used and the legitimate aim said to be pursued was achieved and maintained. It follows that the placement of the applicants in Roma-only classes at times during their primary education had no objective and reasonable justification. 185. The Court therefore finds that in the present case there has been a violation of Article 14 of the Convention taken together with Article 2 of Protocol No. 1. 186. In view of that conclusion, it is not necessary to examine the complaint under Article 2 of Protocol No. 1 taken alone. III. 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.” A. The Chamber judgment 188. The Chamber, in view of the violation found, considered that the applicants had sustained non-pecuniary damage because the length of the proceedings before the national courts had exceeded a “reasonable time”, and that it was therefore appropriate to award them compensation. Ruling on an equitable basis, it awarded each applicant 1,300 euros (EUR) under this head, plus any tax that might be chargeable. It also awarded the applicants jointly EUR 2,000 for costs and expenses, plus any tax that might be chargeable. B. The parties ’ submissions 189. The applicants claimed EUR 22,000 each in respect of non-pecuniary damage and EUR 20,316.50 jointly for costs and expenses incurred at domestic level and before the Court. 190. The Government argued that the applicants ’ claim in respect of non-pecuniary damage should be rejected. As regards the claim for costs and expenses in respect of the proceedings before the Court, the Government deemed it excessive. C. The Court ’ s assessment 1. Non-pecuniary damage 191. The Court considers that the applicants must have sustained non-pecuniary damage – in particular as a result of the frustration caused by the indirect discrimination of which they were victims – for which the finding of a violation of the Convention does not afford sufficient redress. However, the Court considers the amounts claimed by the applicants to be excessive. Ruling on an equitable basis, it assesses the non-pecuniary damage sustained by each of the applicants at EUR 4, 5 00. 2. Costs and expenses 192. The Court reiterates that legal costs are only recoverable to the extent that they relate to the violation that has been found ( see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002). The Court notes that Mrs Kušan, Mr Dobrushi and Mr Alexandridis have each submitted details of their professional fees, as well as the costs of translation of the relevant documents. Having regard to all the relevant factors and to Rule 60 § 2 of the Rules of Court, the Court makes a joint award to all the applicants of EUR 10,000 for costs and expenses. 3. 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. | Even though the present case differed from D.H. and Others v. the Czech Republic (see above) in that it had not been a general policy in both schools to automatically place Roma pupils in separate classes, it was common ground that a number of European States encountered serious difficulties in providing adequate schooling for Roma children. In the instant case, the Court observed that only Roma children had been placed in the special classes in the schools concerned. The Croatian Government attributed the separation to the pupils’ lack of proficiency in Croatian; however, the tests determining their placement in such classes did not focus specifically on language skills, the educational programme subsequently followed did not target language problems and the children’s progress was not clearly monitored. The placement of the applicants in Roma-only classes had therefore been unjustified, in violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 2 (right to education) of Protocol No. 1 to the Convention. Others v. Greece |
59 | Adoption | II. RELEVANT DOMESTIC, COMPARATIVE AND INTERNATIONAL LAW A. Domestic law 21. The relevant provisions of the Swiss Civil Code are as follows: Chapter IV : AdoptionA. Adoption of minorsArticle 264 (General condition) “ A child may be adopted if the future adoptive parents have provided it with care and education for at least one year and if, in the light of all the circumstances, it may be foreseen that the establishment of a parent-child relationship will further the child ’ s welfare without unfairly affecting the situation of other children of the adoptive parents. ” Article 264b ( Adoption by a single person ) “1. An unmarried person may adopt a child alone if he or she is at least 35 years old. ...” Article 268a ( Enquiries ) “1. An adoption shall not be granted until enquiries have been made, covering all essential circumstances, where necessary with the assistance of experts. 2. The enquiries shall concern, in particular, the personality and health of the adoptive parents and the child, their mutual suitability, the parents ’ ability to bring up the child, their financial situation, their motives, their family circumstances and the development of the fostering relationship. 3. Where the adoptive parents have descendants, the opinion of the latter shall be taken into account. ” Article 316 ( Supervision of children placed with foster parents ) “1. The placement of children with foster parents shall be subject to the authorisation and supervision of the supervisory authority or another office for the foster parents ’ place of residence, as designated by the law of the canton. 1 bis. Where a child is placed with a view to adoption, a single cantonal authority shall be responsible. 2. The Federal Council shall issue implementing regulations.” 22. The relevant provisions of the Federal Council ’ s Order governing the placement of children for support and with a view to adoption ( “ the OPEE ” ) of 19 October 1977 read as follows : Article 11b (Conditions for grant of authorisation ) “Authorisation may only be granted where : ( a ) the personal qualities, state of health and educational capacities of the future adoptive parents and other persons living in their household, together with the housing conditions, offer every guarantee that the fostered child will benefit from appropriate care, education and training and that the well-being of other children in the family will be safeguarded; and where ( b ) there is no legal impediment preventing the future adoption and provided it can be foreseen, in the light of all the circumstances, in particular the motives of the future adoptive parents, that the adoption will further the child ’ s welfare. The capacities of the future adoptive parents will require special attention if there are circumstances that may render their task difficult, in particular : ( a ) where it may be feared, in view of the child ’ s age, especially if it is over six years of age, or in view of its development, that it may have difficulties settling into its new environment; ( b ) where the child is physically or mentally handicapped; ( c ) where more than one child will be placed in the same family; ( d ) where the family already has more than one child. The authority will take particular account of the child ’ s interest where : ( a ) the age difference between the child and future adoptive father or mother is more than forty years; ( b ) the applicant is not married or he or she cannot adopt jointly with his or her spouse. ” Article 11g ( Provisional authorisation to receive a child who has previously been living abroad ) “ Where the future adoptive parents meet the conditions laid down in Articles 11b and 11c, § 1, provisional authorisation to receive a child who has previously been living abroad, with a view to his or her adoption, may be delivered, even if the child has not yet been determined. In their application, the future adoptive parents shall indicate : ( a ) the child ’ s country of origin; ( b ) the service or person in Switzerland or abroad whose assistance will be required in finding the child; ( c ) their stipulated conditions regarding the child ’ s age; ( d ) where appropriate, their stipulated conditions regarding the child ’ s gender or state of health. The provisional authorisation may be limited in time and may be subject to obligations and conditions. The child may be received in Switzerland by its future adoptive parents only once the visa has been issued or leave to remain has been secured. After the child has entered Swiss territory, the authority shall decide on the granting of permanent authorisation.” B. Comparative law 23. Most European legislations authorise adoption by a single person. However, a number of different situations can be found. The legislative provisions of certain States permit any person, man or woman, with or without a precise indication of marital status, to apply for adoption. This is the case, in particular, for the following countries : Belgium, the Czech Republic, Estonia, Finland, “the former Yugoslav Republic of Macedonia”, France, Hungary, Ireland, Malta, the Netherlands, Portugal, Russia, Spain, Sweden, Turkey and the United Kingdom. Certain States, such as Germany or Latvia, allow adoption by a single person subject to certain conditions. In German legislation, adoption is regarded as legitimate where it contributes to the child ’ s physical and moral well-being and where the establishment of an effective parent-child relationship can be expected. 24. Other States impose restrictions on the adoption of a child by a single person. For example, in Slovakia and Croatia, adoption by a single parent remains an exception. The possibility may be envisaged only if it can be shown that the adoption is in the child ’ s interest ( in Slovakia and Croatia ). In the same vein, Serbian and Montenegrin legislations allow adoption by a single person only where there are sufficient reasons to justify it. Luxembourg law draws a distinction between simple adoption (which does not terminate the connection with the family of origin) and full adoption (which terminates all legal connection with the family of origin), stipulating that simple adoption alone, not full adoption, is possible for a single person. Unlike France and Belgium, which also have such a distinction, but which nevertheless allow single persons to adopt in both cases, it is not possible in Luxembourg or Montenegro for single persons to apply for full adoption. 25. The Italian legislation is similar to that of Luxembourg and Montenegro, as single persons are authorised to adopt minors only in the context of “adoption in special circumstances”. The definition of “adoption in special circumstances” corresponds to that of simple adoption, as it enables the adopted child to retain legal connections with his or her family of origin. 2. Conditions as to minimum and maximum age of prospective adopters 26. Most of the legislations of the Council of Europe ’ s member States require a minimum age for prospective adopters. That age continually decreased throughout the twentieth century. The majority of European legal systems now fix a minimum age of between 18 and 30 years. The Czech Republic, “ the former Yugoslav Republic of Macedonia”, Hungary and Romania are among the rare member States that do not stipulate a minimum age for persons wishing to adopt. 27. Some legislations, albeit few in number, expressly provide for a maximum age for prospective adopters. For example, Croatia, “ the former Yugoslav Republic of Macedonia”, Greece, Montenegro, the Netherlands and Portugal impose a maximum age of between 35 and 60 years ( for the latter limit, Greece and Portugal in particular ). Specific reasons may exceptionally justify non-observance of the maximum age rule. This is the case, for example, in Montenegro and the Netherlands, where an exemption from the maximum age requirement may be granted where there are sufficient reasons to justify such an exception or specific circumstances. In Montenegro and the “ the former Yugoslav Republic of Macedonia”, when exemption from the maximum age is possible, an additional condition, relating to the difference in age between adopter and adoptee, is imposed. 28. In another group of States, where no maximum age is stipulated, the competent national authorities in the area of adoption nevertheless take into consideration the age of the person wishing to adopt when they examine his or her personal situation. This is apparent from the material available on the legal systems of Belgium, France, Ireland, Romania, Slovakia, Spain, Sweden and the United Kingdom. 3. Conditions concerning age difference between adopter and adoptee 29. It appears that the legislations of most member States also contain provisions concerning the age difference between adopter and adoptee. 30. A number of legal systems – Austria, Belgium, Bulgaria, Croatia, “ the former Yugoslav Republic of Macedonia”, France, Greece, Hungary, Italy, Luxembourg, Malta, Montenegro, the Netherlands, Russia, Serbia, Spain and Turkey – impose a minimum age difference between adopter and adoptee. That difference, where required, varies between fourteen and twenty-one years. It should be noted, however, that the legislations of these States do allow derogations from the principle of the minimum age difference in certain situations. 31. In another group of legal systems, including in particular the Czech Republic, Denmark, Estonia, Finland, Germany, Ireland, Portugal, Romania, Slovakia, Sweden, Ukraine and the United Kingdom, no minimum age difference is provided for by law. In those cases the legislation may expressly provide that the age difference must be “appropriate”, “neither too wide nor too narrow” or “reasonable”. 32. Some legislations set a maximum age difference between adopter and adoptee, namely forty years in Denmark, Finland and the Netherlands ( in the latter, only for the adoption of foreign children ), forty-five years in Croatia, “ the former Yugoslav Republic of Macedonia”, Hungary, Italy, Malta, Serbia and Ukraine, and fifty years in Greece; also, in exceptional circumstances, in Montenegro and Portugal. However, derogations from the provisions concerning the maximum age difference are possible in specific circumstances, which are largely the same as those that are considered in respect of the minimum age difference. C. International law 33. A significant number of instruments governing adoption, particularly in order to protect the child ’ s interest, lay down various conditions. However, few texts expressly lay down requirements related to the possibility of adoption by single persons or conditions concerning the adopter ’ s age or the age difference between adopter and adoptee. Certain international instruments concerning adoption refer to the application of the domestic law rules of the States Parties to the conventions in question. 1. European Convention on the Adoption of Children, 24 April 1967 34. The European Convention on the Adoption of Children, 24 April 1967, remains the main instrument of the Council of Europe in the area of adoption. It came into force on 26 April 1968. To date, eighteen member States, including Switzerland, have ratified it and three have just signed it. 35. Under the first Article of this instrument, the member States of the Council of Europe, Contracting Parties to the Convention, undertake to ensure the conformity of their law with the provisions of Part II of the Convention. This Part sets out a minimum number of essential principles to which the Contracting Parties undertake to give effect, seeking to harmonise such principles and European practice in matters of adoption. 36. As regards persons who are allowed to adopt a child, Article 6 stipulates that the law of the Contracting Party may permit a child to be adopted by one person. However, States that only allow adoption by a couple are not required to enact provisions to allow adoption by a single person. 37. As to the age - limit for adoptive parents and the age difference between them and the children, Article 7 provides that “a child may be adopted only if the adopter has attained the minimum age prescribed for the purpose, this age being neither less than 21 nor more than 35 years”. However, “ the law may ... permit the requirement as to the minimum age to be waived when (a) the adopter is the child ’ s father or mother, or (b) by reason of exceptional circumstances”. 38. Article 8 provides as follows: “1. The competent authority shall not grant an adoption unless it is satisfied that the adoption will be in the interest of the child. 2. In each case the competent authority shall pay particular attention to the importance of the adoption providing the child with a stable and harmonious home. 3. As a general rule, the competent authority shall not be satisfied as aforesaid if the difference in age between the adopter and the child is less than the normal difference in age between parents and their children.” 2. European Convention on the Adoption of Children ( Revised ), 27 November 2008 39. The legal and social changes that have occurred in Europe since the first Council of Europe Convention on the Adoption of Children have led a large number of States Parties to amend their adoption laws. As a result, certain provisions of the 1967 Convention have gradually become outdated. With that in mind, a revised Convention was drawn up in line with the social and legal developments whilst taking the child ’ s best interests into account. 40. The Council of Europe ’ s European Convention on the Adoption of Children (Revised) (“the Revised Convention”), which was opened for signature on 27 November 2008, has not yet come into force; fourteen member States have signed it to date. It will replace, as regards the States Parties thereto, the European Convention on the Adoption of Children. 41. Under Article 7 of the Revised Convention (conditions for adoption), domestic law will “permit a child to be adopted ... by one person”. Article 9 (minimum age of the adopter) provides as follows : “1. A child may be adopted only if the adopter has attained the minimum age prescribed by law for this purpose, this minimum age being neither less than 18 nor more than 30 years. There shall be an appropriate age difference between the adopter and the child, having regard to the best interests of the child, preferably a difference of at least sixteen years. 2. The law may, however, permit the requirement as to the minimum age or the age difference to be waived in the best interests of the child: a. when the adopter is the spouse or registered partner of the child ’ s father or mother; or b. by reason of exceptional circumstances. ” 42. This Article does not prevent the national law from imposing a minimum age of more than 18 years on the adopter. Any higher level of minimum age must nevertheless respect the principle of adoption as enshrined in the Convention and, accordingly, that age cannot exceed 30. The upper limit of the minimum age that was set by the 1967 Convention, namely 35 years, now appears excessive; it has thus been set at 30. Moreover, the Convention does not prescribe a maximum age for the adopter ( see Explanatory Report on the Revised Convention, §§ 50-52). THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 43. Relying on Article 12 of the Convention, taken in conjunction with Article 14, the applicant, a single woman aged forty -seven and a half at the time of her application to receive a child with a view to adoption, complained that the Swiss authorities had debarred her from adopting a second child because of her age. In this connection, she also claimed to be a victim of discrimination in relation to women who could nowadays have biological children at that age. 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.” 44. Article 12 of the Convention provides : “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” 45. Notice of the application was given to the Government on 17 February 2009. They were invited to submit their observations on a possible violation of Article 14 of the Convention, taken in conjunction with Article 8, which reads as follows : “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” ... B. The Court ’ s assessment 69. The Court is aware of the fact that the applicant, who was not represented before the Court when she lodged the present application, relied on Article 14 of the Convention taken in conjunction with Article 12. However, since the Court is master of the characterisation to be given in law to the facts of the case ( see, for example, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 - I, and Glor v. Switzerland, no. 13444/04, § 48, ECHR 2009 ), it considers it more appropriate, in the light of all the circumstances of the case, to examine the present case under Article 8. ... 2. Merits ( a ) Applicable principles 76. The Court reiterates that Article 14 of the Convention affords protection against any discrimination in the enjoyment of the rights and freedoms set forth in the other substantive provisions of the Convention and Protocols thereto. However, not every difference in treatment will automatically amount to a violation of that Article. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory ( see, for example, National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 88, Reports 1997 - VII, and Zarb Adami v. Malta, no. 17209/02, § 71, ECHR 2006 - VIII ). 77. According to the Court ’ s case-law, a difference of treatment is discriminatory within the meaning of Article 14 if it has no objective or reasonable justification. The existence of such justification must be assessed in relation to the aim and effects of the measure in question, having regard to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down by the Convention must not only pursue a legitimate aim: Article 14 will also be violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised ( see, for example, Zarb Adami, cited above, § 72; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and Lithgow and Others v. the United Kingdom, 8 July 1986, § 177, Series A no. 102 ). 78. In other words, the notion of discrimination generally covers those cases where a person or group is treated, without proper justification, less favourably than another, even if the more favourable treatment is not called for by the Convention ( see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 82, Series A no. 94 ). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland ( dec. ), no. 36797/97, 27 September 2001, and Zarb Adami, cited above, § 73). 79. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background. One of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States ( see, among other authorities, Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87; Fretté v. France, no. 36515/97, § 40, ECHR 2002 ‑ I; Stec and Others, cited above, § 52; and Inze v. Austria, 28 October 1987, § 41, Series A no. 126 ). 80. Since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any evolving convergence as to the aims to be achieved. The existence or non-existence of common ground between the legal systems of the Contracting States may in this connection constitute a relevant factor in determining the extent of the authorities ’ margin of appreciation ( see Rasmussen, cited above, § 40, and, mutatis mutandis, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 59, Series A no. 30 ). 81. The Convention and Protocols thereto must also be interpreted in the light of present-day conditions ( see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Vo v. France [GC], no. 53924/00, § 82, ECHR 2004 ‑ VIII ). Lastly, the Court reiterates the well-established principle in its case-law that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective ( see, for example, Artico v. Italy, 13 May 1980, § 33, Series A no. 37 ). ( b ) Application of these principles to the present case ( i ) The existence of a difference in treatment between persons placed in analogous situations 82. The applicant, a single woman aged forty-seven and a half at the time of her application to receive a child with a view to adoption, complained that the Swiss authorities had debarred her from adopting a second child because of her age. She claimed, in particular, to be a victim of discrimination in relation to women who could nowadays have biological children at that age. 83. The Government submitted, by contrast, that there had been no difference in treatment on the part of the State in similar or analogous situations, since the State could not have any influence over a woman ’ s ability or inability to have biological children. Moreover, the Government argued that it could not be concluded from the present case that in Switzerland there was a general discriminatory attitude based on the age of persons wishing to adopt a child. The Federal Court ’ s case-law illustrated the contrary, since an age difference of forty-four years, or even of forty- six years, had not been found excessive in two cases that it had examined ... 84. The Court cannot share the applicant ’ s opinion that she has been the victim of discrimination in relation to women who, nowadays, are able to have biological children at that age. Like the Government, it finds that this does not correspond to a difference in treatment on the part of the State in analogous or similar situations. As the Government rightly observed, the State has no influence over a woman ’ s ability or inability to have biological children. 85. The Court is of the opinion, by contrast, that the applicant may consider herself to have been treated differently from a younger single woman who, in the same circumstances, would be likely to obtain authorisation to receive a second child with a view to its adoption. Accordingly, the applicant may claim to be a victim of a difference in treatment between persons in analogous situations. ( ii ) The existence of objective and reasonable justification 86. The Court has no doubt that the denial of authorisation to receive a child with a view to adoption pursued at least one legitimate aim : to protect the well-being and rights of the child ( see, mutatis mutandis, Fretté, cited above, § 38). It remains to be determined whether the second condition – the existence of justification for a difference in treatment – was also met. 87. The Court notes that in 1998 the applicant, then aged 41, applied for authorisation to receive a first child and it was granted. In January 2000 she received a little girl, who was born in Vietnam. The adoption was finalised on 26 June 2002 ( see paragraph 10 above ). 88. As regards the subsequent procedure with a view to the adoption of a second child, the Court observes that the domestic authorities by no means called into question the fact that the applicant had the requisite child-rearing capacities and financial means in order to adopt a second child. However, the Federal Court found that there would be an age difference between the applicant, who was 49 at the time it delivered its judgment, and the child to be adopted, of between forty-six and forty-eight years, a difference that it regarded as excessive and not in the child ’ s interest in the circumstances of the case. The Federal Court added, like the court below, that even assuming that the adoption concerned a 5 -year-old child, and not a 3 -year-old as the applicant had initially wished, an age difference of forty-five years in relation to the child appeared excessive. 89. It must be noted that there is no common ground in this area. In the present case the applicant wished to adopt alone, as a single mother. On the basis of research it has carried out, the Court notes that such a right is not guaranteed in all the member States of the Council of Europe, at least not in an absolute manner. Certain legislations permit adoption by a single person on an exceptional basis and only subject to certain conditions (paragraphs 23-25 above ). The European Convention on the Adoption of Children, in its 24 April 1967 version, stipulates that the laws of the States Parties may permit a child to be adopted by one person, but it does not make this mandatory ( see paragraph 36 above ), unlike the Revised Convention of 27 November 2008, Article 7 § 1 ( b) of which will oblige States Parties thereto, once it has come into force, to authorise adoption by a single person. 90. As regards the applicant ’ s age, which according to her was the main criterion of distinction, no uniform principle can be found in the legal systems of the Contracting States, neither in respect of the lower and upper age- limits for adopters nor in respect of the age difference between the adopter and the adopted child. Most of the Council of Europe ’ s member States require a minimum age for prospective adopters, an age that continually decreased throughout the twentieth century ( see paragraph 26 above ). In addition, Article 264 ( b) of the Swiss Civil Code sets the minimum age for a person wishing to adopt alone at 35 ( see paragraph 21 above ), which is consistent with Article 7 of the European Convention on the Adoption of Children of 24 April 1967. It can be seen from the Explanatory Report on the Revised Convention that such a limit appeared too high and it was therefore reduced to 30 in the new version. The Court observes that this development does not undermine the Government ’ s position in the present case, as the applicant did not complain that this minimum age had prevented her from adopting a second child. 91. As regards the maximum age for prospective adopters, the Court again finds that there is great diversity in the solutions adopted by the legislatures of the member States. Admittedly, some States have set the maximum age at 60 ( see paragraph 27 above ), but the Court finds that no obligation can arise for Switzerland from those isolated cases. It should also be taken into account that neither the Convention of 1967 nor that of 2008 prescribes a maximum age-limit for adopters. The Court notes that the same applies to the age difference between adopter and adoptee. It would point out that the Federal Court found, in the light of its own case-law, that an age difference of between forty-six and forty-eight years was in the present case excessive. In the Court ’ s view, such a conclusion is not per se incompatible with Article 14, even though some legislations, albeit few in number, allow for an even greater maximum age difference ( see paragraph 32 above ). The 1967 Convention does not lay down any fixed rule in this connection and Article 9 § 1 of the 2008 Convention simply provides that there should be “an appropriate age difference”. 92. In view of the foregoing, the Court takes the view that, in the absence of any consensus in this area, the Swiss authorities had a wide margin of appreciation and that both the domestic legislation and their decisions appear to fall squarely within the framework of the solutions adopted by the majority of the member States of the Council of Europe and, moreover, to be in conformity with the applicable international law. 93. The Court considers it quite natural that the national authorities, whose duty it is also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy broad discretion when they are asked to make rulings on such matters. Since the delicate issues raised in the present case touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State (see, mutatis mutandis, Manoussakis and Others v. Greece, 26 September 1996, § 44, Reports 1996-IV, and Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII). 94. This margin of appreciation should not, however, be interpreted as granting the State arbitrary power, and the authorities ’ decision remains subject to review by the Court for conformity with the requirements of Article 14 of the Convention. 95. As the Government submitted, at issue here are the competing interests of the applicant and the children in question. The State must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect. The Court points out in that connection that it has already found that where a family tie is established between a parent and a child, “particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent” (see E.P. v. Italy, no. 31127/96, § 62, 16 September 1999, and Johansen v. Norway, 7 August 1996, § 78, Reports 1996-III). 96. As to the present case, the domestic authorities ’ decisions were taken in the context of adversarial proceedings during which the applicant was able to submit her arguments, which were duly taken into account by the authorities. Those decisions contained detailed reasoning and were based in particular on the in-depth enquiries carried out by the cantonal authorities. They were inspired not only by the best interests of the child to be adopted, but also by those of the child already adopted. Moreover, the Court finds it noteworthy that the criterion of the age difference between adopter and adoptee is not laid down by Swiss law in the abstract but has been applied by the Federal Court flexibly and having regard to the circumstances of each case. In particular, the Court does not find unreasonable or arbitrary the argument of the domestic bodies that the placement of a second child, even of a similar age to the first, would constitute an additional burden for the applicant. Nor would it disagree with the point that problems are more numerous in families with more than one adopted child ( see Federal Court judgment, point 3.4, paragraph 20 above ). It is clear in this type of case that the use of statistical data is necessary and that a degree of speculation is inevitable. 97. If account is taken of the broad margin of appreciation accorded to States in this area and the need to protect children ’ s best interests, the refusal to authorise the placement of a second child did not contravene the proportionality principle. 98. In short, the justification given by the Government appears objective and reasonable and the difference in treatment complained of is not discriminatory within the meaning of Article 14 of the Convention. 99. Accordingly, there has been no violation of Article 14 of the Convention taken in conjunction with Article 8. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention, finding that the difference of treatment imposed on the applicant had not been discriminatory. It observed in particular that the Swiss authorities had taken their decisions in the context of adversarial proceedings allowing the applicant to submit her arguments, which had been duly taken into account by those authorities. They had further considered not only the best interests of the child to be adopted, but also those of the child already adopted. Moreover, the criterion of the age-difference between the adopter and the child had been applied by the Federal Court flexibly and having regard to the circumstances of the situation. Lastly, the other arguments given in support of the decisions, i.e. those not based on age, had not been unreasonable or arbitrary. |
575 | Expulsion or extradition cases | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Domestic law on expulsion 47. Pursuant to Chapter 1, Article 8 of the Penal Code ( Brottsbalken, 1962:700), a crime may, apart from ordinary sanctions, result in special consequences defined by law. Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place. 48. Provisions on expulsion on this ground are laid down in the Aliens Act ( Utlänningslagen, 2005:716 – hereafter “the 2005 Act”) which replaced the old Aliens Act ( Utlänningslagen, 1989:529) on 31 March 2006. However, the rules on expulsion on account of a criminal offence remain the same in substance under the 2005 Act as under the old Aliens Act. Thus, in the following, reference will only be made to the 2005 Act. 49. According to Chapter 8, sections 8 and 11 of the 2005 Act, an alien may not be expelled from Sweden on account of having committed a criminal offence unless certain conditions are satisfied and the person ’ s links to Swedish society have been taken into account. 50. Moreover, the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision. Thus, pursuant to Chapter 12, section 1 of the 2005 Act, there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment. Furthermore, a risk of persecution generally constitutes an impediment to enforcing an expulsion decision. 51. A decision to expel an alien on account of having committed a criminal offence is, according to Chapter 12, section 14 § 3(2) of the 2005 Act, enforced by the police authority. If the police authority finds that there are impediments to the enforcement, it shall notify the Migration Board, which shall refer the matter to the Government to examine whether the expulsion can be executed (Chapter 12, section 20 of the 2005 Act). If there are no impediments to the enforcement, the alien shall normally be sent to his or her country of origin or, if possible, to the country from which he came to Sweden (Chapter 12, section 4 of the 2005 Act). 52. According to Chapter 8, section 14 of the 2005 Act, if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence cannot be executed or if there are otherwise special reasons not to enforce the decision, the Government may repeal, in part or completely, the judgment or decision of the court. When considering whether to repeal an expulsion order, the Government shall above all take into account any new circumstances, namely circumstances that did not exist at the time of the courts ’ examination of the criminal case. In the travaux préparatoires to this provision (Government Bill 1988/89:86, p. 193), strong family ties and severe illness are given as examples of such “special reasons” that may warrant revocation of an expulsion order. The Government may also, in accordance with Chapter 11, Article 13, of the Instrument of Government ( Regeringsformen ), pardon or reduce a penal sanction or other legal effect of a criminal act. 53. In cases where the expulsion order is not revoked, the Government may still grant a temporary residence permit and work permit. For as long as such a permit is valid, the expulsion order may not be executed (Chapter 8, section 14 of the 2005 Act). B. Swedish policy on asylum seekers from Iraq and expulsion to Iraq 54. In a judgment of 26 February 2007 (MIG 2007:9), the Migration Court of Appeal ( Migrationsöverdomstolen ) found that, at that time, the security situation in Iraq was very serious but that it did not amount to an internal armed conflict, as defined by international law. Moreover, it noted that it was practically possible to return to Iraq voluntarily and that some Iraqis indeed did so. In these circumstances, an individual assessment of each asylum seeker ’ s personal grounds for requesting asylum and a residence permit in Sweden had to be carried out. This conclusion has been reiterated by the Migration Court of Appeal on several occasions during the last year (see, for example, MIG 2007:22 and MIG 2007:33). Furthermore, on 24 April 2008, in a leading decision concerning three Christian asylum seekers from Mosul (a mother and her two minor children), the Director-General for Legal Affairs of the Migration Board made the assessment that the general situation for Christians in Iraq, and in the province of Nineve (where Mosul is situated), was not so serious that this group could be considered to be in need of protection in Sweden. An individual assessment had to be made in each case of the reasons invoked by the asylum seeker. 55. On 18 February 2008 the Swedish Government signed a Memorandum of Understanding with the Iraqi Government, whereby the two countries “resolve to cooperate in order to assist the voluntary, dignified, safe and orderly return to and successful reintegration in Iraq of Iraqis now in Sweden ”. Although primarily focusing on voluntary returns, the Memorandum also allowed for forced returns of failed asylum seekers. THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 72. The applicant claimed that an expulsion to Iraq would subject him to a real risk of being killed or subjected to torture or inhuman and degrading punishment, in violation of his rights under Articles 2 and 3 of the Convention. These provisions read, in relevant parts, as follows: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... ” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Court finds that the issues raised in the present case under Articles 2 and 3 of the Convention are indissociable and will therefore examine them together. A. The parties ’ submissions 1. The applicant 73. The applicant argued that, if forced to return to Iraq, he would face a real and serious risk of being sentenced to death by an Iraqi court or of being killed extrajudicially, primarily by Shi ’ a militia groups. 74. He claimed that he had told the Swedish Security Police, when they had interviewed him in 1993, that he had participated in about fifteen battles during the Iran-Iraq war and during the internal “cleansing” operations in southern and northern Iraq in 1991. He had been trained as an infantry soldier and had been active as such from 1980 to 1988. Thus, he had been taught how to handle weapons and hand-to-hand fighting. In 1988 he had reached the rank of officer and thereafter he had been working with logistics. During this period he had also had to write reports on Shi ’ a insurgency leaders which had led to the execution of two of them. According to the applicant, the Shi ’ as considered these two persons martyrs and there were “people ’ s committees” within the Mahdi Army, and other Shi ’ a militias, which reported on the whereabouts of all former officers belonging to the Republican Guard and executed them. It was irrelevant whether the applicant had personally killed any of these or not. 75. Furthermore, the applicant strongly objected to any claim that he was not credible. For instance, he had never alleged that he had belonged to Saddam Hussein ’ s inner circle and he had stated all along that he had never even met him. However, he maintained that he was well known and that the Shi ’ as by way of their various militias were actively looking for persons with the applicant ’ s background and killing them. The fact that a long time had elapsed since he had served in the Republican Guard was irrelevant. 76. In the applicant ’ s view, it was also possible that he might be tried again in Iraq for the murder of his wife. This was particularly so since he had been sentenced to forensic psychiatric care and not to imprisonment. 77. Finally, he stressed that, according to estimates, before 2003 approximately 1% of Iraq ’ s twenty-six million inhabitants were Christians but that more than half of these had now left the country because they had been targeted. He was Christian and, as such, risked being killed in Iraq. 78. Thus, the applicant was convinced that on the basis of all of the above grounds, he would face a real risk of being killed or tortured or ill-treated contrary to Articles 2 or 3 of the Convention if forced to return to Iraq. 2. The Government 79. The Government considered that the application did not disclose any violation of Articles 2 or 3 of the Convention. 80. They submitted that, although the situation in Iraq was still problematic, Iraqis did return to their home country, in particular to Baghdad and that, during the first four months of 2008, almost 300 Iraqis had returned voluntarily to Iraq from Sweden. In any event, for a violation to be established, the general situation in the country of destination was not enough. It had to be shown that the applicant would run a real and personal risk of being subjected to treatment contrary to Articles 2 or 3 of the Convention if returned to Iraq. 81. In this respect, the Government questioned the applicant ’ s general credibility, pointing out that his statements to the Government and to the Court had, generally, been very vague and sweeping and had been unsupported by further details, particulars, facts or examples. They submitted that the information given by the applicant during the asylum interviews in 1993/94, namely that he had held a relatively subordinate position in a non-combat unit in the Iraqi army more than fourteen years earlier, had to form the basis for an assessment of whether he risked execution or torture or other ill-treatment if returned to Iraq. 82. Consequently, the Government doubted the veracity of the applicant ’ s claim that he had been close to Saddam Hussein or that he had held a prominent position within the Ba ’ ath Party since these claims had been put forward late in the proceedings. Before that, he had consistently stated that he had been an “advanced sympathiser”. In any event, the Government noted that it had not been unusual to be a member of the Ba ’ ath Party, but more or less a prerequisite for anyone who had wanted to advance in any way in Iraq. 83. The Government further observed that the applicant ’ s claim that he had participated in combat during the war against Iran, in the first Gulf war and against the Shi ’ a insurgency was contrary to his previous statements that he had not participated in battle as he had been responsible for transporting vehicles and food. Furthermore, they observed that he had offered no explanations or circumstances in support of why any charges might be brought against him, reiterating that the applicant had repeatedly stated that he had not participated in battle or killed anyone. Thus, the Government argued that he had failed to show that he might be brought to justice before an Iraqi court, let alone that it would give him a death sentence. 84. In any event, they argued that the sole fact that a person had served in the Iraqi military under Saddam Hussein did not subject him to a risk of capital punishment or torture but that the individual risk depended on the person ’ s position, military rank and the activities in which he had been involved. They gave the example of the Iraqi Minister of Defence, Mr Abdu Alqadir Al-Ubaydi, who had been in the military since 1973 and had led an armoured brigade during the Iran-Iraq war. Moreover, the Government pointed out that, in June 2008, over 14,000 applications had been received from former Ba ’ ath Party members for reinstatement or pensions under the Accountability and Justice Law. Hence, there was nothing to suggest that the applicant would be at risk in Iraq. Anyhow, the Government noted that the applicant had not claimed that he was personally wanted, or searched for, by the Iraqi authorities. 85. In line with the above, the Government submitted that the applicant did not face a real risk of being killed extrajudicially. In their view, it was unlikely that the reintegration of former officers now taking place in Iraq would be possible if everyone who had been in Saddam Hussein ’ s army risked extrajudicial killing solely on this account. Also, considering the large number of members of the Ba ’ ath Party during the old regime, it was not likely that the applicant ’ s low position in the party would now, more than fourteen years after he left the country, attract any interest in Iraq or subject him to a risk of fatal retaliation from different interest groups, including from Shi ’ a militia groups. 86. As concerned the issue of whether the applicant might risk being sentenced in Iraq a second time for the murder of his wife in Sweden, the Government referred to the Iraqi Penal law from 1969 and stressed that the applicant had fully served the sentence imposed on him in 1995 in Sweden and that there was no reason to expect the Iraqi authorities to have an interest in pursuing the applicant in a new trial in Iraq for the same crime. 87. The Government further submitted that the sole fact that someone was a Christian could not be considered to entail an additional risk of being exposed to violence. They claimed that the applicant had not described himself as actively religious in Sweden or in Iraq in such a way that people would associate him with Christianity and he would be personally targeted because of this in Iraq. 88. Hence, in conclusion, the Government contended that the applicant had not shown that he would face a real and personal risk of treatment contrary to Articles 2 or 3 of the Convention if expelled to Iraq. B. The Court ’ s assessment 89. The Court observes that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens ( Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ .... ). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country ( Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008 - ... ). 90. It further notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see H.L.R. v. France, 29 April 1997, § 41, Reports of Judgments and Decisions 1997 ‑ III ). However, the Court has never excluded the possibility that the general situation of violence in a country of destination may 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 ). 91. In the present case, the Court recognises the problematic security situation in Iraq. However, it notes that the situation has improved over the last year which is demonstrated, inter alia, through the progressive relinquishment of security responsibility over Iraqi provinces from US forces to Iraqi forces, the indefinite cease -fire declared by the Madhi Army in August 2008, a significant decrease in civilian deaths and the fact that some Iraqis are voluntarily starting to return to their homes, encouraged by the Iraqi Government ’ s financial incentives and subsidy programme. Although the Court is aware that the UNHCR, UN and IOM recommend that countries refrain from forcibly returning refugees to Iraq, they have stated that they are committed to providing assistance to those who return. Moreover, the Court observes that their recommendations are partly based on the security situation and partly due to practical problems for returnees such as shelter, health care and property restitution. 92. In this connection, the Court stresses that it attaches importance to information contained in recent reports from independent international human rights organisations or governmental sources (see, among others, Saadi v. Italy, cited above, § 131). However, its own assessment of the general situation in the country of destination is carried out only to determine whether there would be a violation of Article 3 if the applicant were to be returned to that country. Consequently, where reports are focused on general socio-economic and humanitarian conditions, the Court has been inclined to accord less weight to them, since such conditions do not necessarily have a bearing on the question of a real risk to an individual applicant of ill-treatment within the meaning of Article 3 ( see NA v. the United Kingdom, cited above, § 122). 93. Hence, in the present case, the Court concludes that whilst the general situation in Iraq, and in Baghdad, is insecure and problematic, it is not so serious as to cause, by itself, a violation of Article 3 of the Convention if the applicant were to return to that country. The Court therefore has to establish whether the applicant ’ s personal situation is such that his return to Iraq would contravene Articles 2 or 3 of the Convention. 94. In the case before it, the Court observes that the applicant has invoked several grounds for his fear of returning to Iraq, namely his Christian faith, his background as a member of the Republican Guard and the Ba ’ ath Party which would put him at risk of being sentenced to death or of being killed by Shi ’ a militia groups, and a risk of being convicted a second time for the murder of his wife. 95. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v. Sweden (dec.), no. 31260/04, 21 June 2005). In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it. 96. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to Iraq, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, § 108 in fine ). 97. The Court will first consider the applicant ’ s claim that he would risk being killed because he belongs to the Christian faith. In this respect, the Court observes that Iraqi national identity cards explicitly note the holder ’ s religion. Thus, even if the applicant were not to manifest his religious beliefs openly, it is likely that his religious affiliation would become known to others as he would have to show his identity card to the authorities in the course of everyday life. The Court also takes into account that there have been several incidents directed against Christians in Iraq, as recently as October 2008 twelve Christians were killed in attacks in the town of Mosul. However, Christian congregations are still functioning in Iraq and, from the general information available, it can be seen that the Iraqi Government has condemned all attacks against this group and that they intervened with police and military following the October attack to ensure their safety. Hence, it is clear that there is no State - sanctioned persecution of Christians and, since the attacks were also condemned by Islamic groups and no one has accepted responsibility for them, it appears that the reported attacks were carried out by individuals rather than by organised groups. In these circumstances, the Court finds that the applicant would be able to seek the protection of the Iraqi authorities if he felt threatened and that the authorities would be willing and in a position to help him. Thus, the Court considers that he would not face a real risk of persecution or ill-treatment on the basis of his religious affiliation. 98. Next, the applicant alleged that he would risk being sentenced to death by an Iraqi court as he had been a member of the Republican Guard and the Ba ’ ath Party. 99. Although the Court does not question that the applicant has been a member of the Republic Guard and served in the Iraq-Iran war and the First Gulf War, it observes that the applicant, during the asylum interviews in 1993 and 1994, consistently held that he had never participated in combat or killed anyone since his tasks had mainly consisted in ensuring the functioning of transports and support to the front line. He also stated that he had never had any influence himself but only carried out orders from his superiors and that he had deserted from the army when ordered to carry out attacks on the Shi ’ as in 1992. The Court observes that the applicant has essentially maintained this account, stating that in 1988 he had been promoted to officer and thereafter he had been working with logistics. Furthermore, the applicant has at no point claimed that he is sought or wanted by the Iraqi authorities for any crime, indeed, he has consistently held that he left the country when ordered to carry out acts against international law. On the basis of this information, and noting that some former Republican Guards have been integrated into the new Iraqi army, the Court finds nothing to indicate that the applicant would risk being charged with any type of crime before the Iraqi courts, let alone the IHT/SICT, for having served in the Republican Guard. Consequently there is no real risk that he would be sentenced to death. 100. As concerns the applicant ’ s membership in the Ba ’ ath Party, the Court observes that he has claimed to have been an “advanced sympathiser” and not a full member of the party, but that he had been given a “Friends of Saddam” card which entitled him to certain privileges. In his submissions before the Government in 2005, the applicant alleged that he had held a prominent position within the Ba ’ ath Party and that he was well-known and hated by many. Further, in his submission of 13 September 2006 to the Court, he specified that he had been an “advanced sympathiser” which meant that he had held a high position in the hierarchy. Here, the Court observes that there is relatively little information about the structure of the Ba ’ ath Party (see above § 5 7 ) but that it would appear that, on the one hand, an “advanced sympathiser” was not a full member of the party and rather low in the hierarchy whereas, on the other hand, a holder of a “Friends of Saddam” card was a person who had been a Party member for at least ten years. Thus, the Court finds that, on the basis of the information and evidence presented to it, it is not possible to establish whether or not the applicant was a full member of the Ba ’ ath Party or, if he was, what exact level he had attained within it. However, having regard to the fact that the applicant has consistently held that he has never met Saddam Hussein or been involved in any political activities, as well as his statement that most officers within the Republican Guard and some officers in the regular army received this special card, the Court considers it highly unlikely that he belonged to any of the higher levels of the Ba ’ ath Party. In any event, the Court observes that the Accountability and Justice Act has opened the door for most former Ba ’ ath Party members to apply for reinstatement into civil service positions. Moreover, the Act has introduced an element of personal responsibility thereby removing the idea of a “collective guilt” of all Ba ’ ath Party members. The Court further observes that the Iraqi parliament adopted an Amnesty Law in February 2008 (see above § 6 1 ) which has resulted in the release, so far, of over 120,000 detainees in Iraq. Having regard to the aforementioned and to the above finding of the Court that the applicant did not risk being charged with any type of crime before the Iraqi courts, the Court considers that the applicant does not face a real risk of being persecuted, and even less of being sentenced to death, for having been a member of the Ba ’ ath Party. 101. The applicant has further alleged that he would risk being killed extrajudicially by Shi ’ a militia groups because he had been in the Republican Guard. In his submission of 13 September 2006 to the Court, the applicant claimed that Shi ’ a militia groups have tried to find and kill all officers who had fought for Saddam Hussein in the war against Iran or against the Shi ’ as in southern Iraq in 1991. Moreover, in his later submission to the Court he has added that, while working with logistics, he had had to write reports on Shi ’ a insurgency leaders which had led to the execution of two of them. 102. As concerns this complaint, the Court first reiterates that, owing to the absolute character of the right guaranteed, Article 3 of the Convention may 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, cited above, § 40). The Court recognises that several Shi ’ a militia groups, and in particular the Mahdi Army, have sought revenge for previous wrong-doing against the Shi ’ a population without the Iraqi authorities having been able to prevent it. However, the Mahdi Army has, more than one year ago, introduced a cease-fire which is now in force for an indefinite period of time and, as a consequence, the sectarian violence has decreased significantly. 103. In relation to the applicant, the Court considers that the very late addition to his submissions, about having written reports about Shi ’ a insurgency leaders, is not very credible as he did not mention this before the Swedish authorities or courts at any point but only in his last submission to the Court. In any event, the Court observes that the applicant has maintained all along, including before the Court, that from 1988 until he left Iraq, he had been working in a transport division with logistics and that he had deserted from the army because he did not want to take part in the attacks against the Shi ’ as in Al Ahwar. To the Court, this rather indicates that the applicant did not personally carry out any violent or criminal acts against the Shi ’ a population for which they would seek revenge. The mere fact of him having been in the Republican Guard is not sufficient to establish that he would face a real risk of being persecuted or attacked by Shi ’ a militia groups. This is in particular so having regard to the Mahdi Army ’ s cease-fire and the facts that it is more than 15 years since the applicant left Iraq and that he did not hold a prominent position within the Republican Guard or the Ba ’ ath Party. 104. Lastly, the applicant has expressed his fear of being convicted a second time in Iraq for the murder of his wife. However, the Court reiterates that the crime took place in Sweden, that the applicant was tried and convicted in Sweden and that he has purged his sentence in Sweden. The Court also notes that, despite some uncertainties surrounding its current status, the Iraqi Penal Code of 1969 prohibits retrial in Iraq of a person who has been convicted by final judgment in another country (see above § 31). In any event, the Court considers that the applicant has not submitted sufficient evidence as concerns the alleged possibility of his retrial in Iraq and therefore this complaint is unsubstantiated. 105. Having regard to all of the above, the Court concludes that substantial grounds for believing that the applicant would be exposed to a real risk of being killed or subjected to treatment contrary to Articles 2 or 3 of the Convention if deported to Iraq, have not been shown in the present case. Accordingly, the implementation of the deportation order against the applicant would not give rise to a violation of Articles 2 or 3 of the Convention. II. RULE 39 OF THE RULES OF COURT 106. The Court recalls that, in accordance with Article 44 § 2 of the Convention, the present judgment will not become final until (a) the parties declare that they will not request that the case be referred to the Grand Chamber; or (b) three months after the date of the judgment, if 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. 107. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4) must continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention. | The Court decided to apply Rule 39 of the Rules of Court, requesting the Swedish Government to refrain from deporting the applicant until further notice. The application of Rule 39 was lifted when the Court’s judgment finding that the implementation of the deportation order against the applicant would not give rise to a violation of Articles 2 or 3 of the Convention became final. |
353 | Violence by private individuals | II. RELEVANT DOMESTIC LAW 25. The relevant parts of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997) read as follows: 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) It may be exceptionally provided by law that criminal proceedings in respect of certain criminal offences should be instituted upon a private prosecution or that the State Attorney ’ s Office should institute criminal proceedings upon [a private] application.” BODILY INJURY Article 98 “Whoever inflicts bodily injury to another person or impairs another person ’ 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 private prosecution.” THREAT Article 129 “(1) Whoever threatens another person with harm in order to intimidate or disturb that person shall be fined up to one hundred and fifty monthly wages or sentenced to imprisonment for a term not exceeding six months. (2) Whoever seriously threatens to kill another person ... shall be fined or sentenced to imprisonment for a term not exceeding one year. ... (4) Criminal proceedings for the criminal offences defined in paragraphs 1 and 2 of this Article shall be instituted upon [a private] application.” 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 from one to eight years.” VIOLENT BEHAVIOUR Article 331 “Whoever for such purposes as violent abuse, ill-treatment or particularly insolent behaviour in public submits another person into a degrading position shall be sentenced to imprisonment for a term from three months to three years.” 26. 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 as follows: 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.” Article 13 obliges the court conducting the criminal proceedings to instruct a participant in those proceedings who may be ignorant in such matters about his or her rights and the consequences of a failure to undertake a requisite procedural step. Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor ( privatni tužitelj ) is the 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. 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 ... it shall be considered that he or she has also 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 upon a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if they have 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 the party ’ s right to take over the proceedings, as well as to instruct that party on the steps to be taken. Article 60 “ ... (2) Where the criminal proceedings are conducted upon a request by the injured party acting as a subsidiary prosecutor in respect of a criminal offence punishable with more than three years ’ imprisonment, he or she may ask to have legal counsel appointed free of charge where this is in the interests of the proceedings and where the injured party lacks the means to bear the expenses of legal representation ... ” Article 71 “(1) Private prosecutions, bills of indictment, requests to prosecute, legal remedies and other statements and information shall be submitted in writing unless otherwise provided by law. (2) The submissions referred to in paragraph 1 shall be comprehensible and contain the necessary information for the authorities to act upon them. (3) Unless otherwise provided in this Act, the court conducting the proceedings shall invite a person who has made submissions which do not contain the necessary information or are incomprehensible to supplement them. Where the submissions have not been amended as required, the court shall declare them inadmissible. (4) In its invitation to amend the submissions, [the court conducting the proceedings] shall warn the person concerned about the consequences of not complying with the instruction.” Article 172 “(1) Citizens shall report criminal offences subject to public prosecution. ... ” Article 173 “(1) A [criminal] complaint shall be lodged with the competent State Attorney ’ s [Office] in writing or orally. ... ” Article 174 “Where the allegations set out in the criminal complaint do not concern a criminal offence subject to public prosecution, the competent State Attorney shall declare it inadmissible in a reasoned decision ... ” Article 188 governs, inter alia, the required contents of a request for an investigation, namely: identification of the person in respect of whom the request is submitted, a description and the legal classification of the offence at issue, the circumstances confirming a reasonable suspicion that the person concerned has committed the offence at issue, and the existing evidence. Article 205, paragraph 1, allows a private prosecutor and the injured party acting as a subsidiary prosecutor to lodge with an investigation judge of a competent court a request for prosecution and other submissions. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 27. Relying on Articles 3 and 8 of the Convention, the applicant complained about the failure of the domestic authorities to afford her adequate protection from an act of violence. The Court considers that in the particular circumstances of the present case these complaints fall to be examined under Article 8 of the Convention, which reads, in so far as relevant: “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 28. The Government contested that argument. A. Admissibility 1. Compatibility ratione materiae 29. The Government firstly submitted that Article 8 was not applicable in the present case. They argued that the relationship between the act of violence in question and the applicant ’ s private and family life was too remote to fall within the scope of that Article since the event complained of had not created any continuous situation which would have affected the applicant ’ s private or family life. In the Government ’ s view, the applicant did not belong to any of the vulnerable categories which required special protection. The alleged attack on the applicant had not lasted for a prolonged period of time and the State authorities could not have been aware that the applicant was a victim of violence. Furthermore, the Government argued that the facts as submitted by the applicant could not be accepted as established since the national courts had found that the applicant had been subjected only to verbal violence. 30. The applicant had no doubts that Article 8 was applicable in the present case. She argued that she belonged to a vulnerable category as being a single woman in patriarchal surroundings. She stressed particular circumstances of the present case : that she had been attacked in the building where she had lived; that when attacked she had been alone, while there had been several attackers; that she had been pushed down the stairs, which had been very dangerous; that one of her attackers had spat at her, which showed loathing and hatred; that she had been hit and insulted verbally. 31. The Court must determine whether the right asserted by the applicant falls within the scope of the concept of “respect” for “private life” set forth in Article 8 of the Convention. In the Court ’ s view there is no doubt that the events giving raise to the present application pertain to the sphere of private life within the meaning of Article 8 of the Convention. Indeed, 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 of principle why the notion of “private life” should be taken to exclude attacks on one ’ s physical integrity (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91 ). The facts of the case accordingly fall within the ambit of Article 8. 2. Exhaustion of domestic remedies 32. The Government further 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 could have brought a civil action for damages in respect of the injuries and fears she had suffered. They further argued that the applicant could have brought a private prosecution against the attackers. 33. The applicant argued that the case of Duchonova (cited above) was not comparable to the present case in view of the gravity of the offences at issue. Furthermore, a civil claim for damages was not an adequate remedy for the violation alleged. The only adequate forms of redress in respect of an act of violence were criminal-law sanctions. As regards criminal proceedings, she argued that she had taken all the necessary steps to have the attackers criminally prosecuted. 34. 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 ). 35. The Court notes firstly that from the Government ’ s submissions concerning a civil action for damages it is not clear against whom such an action is to be brought. As to their referral 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 therefore, the case of Duchonova is not comparable to the present case, which concerns physical violence against the applicant. 36. The Court notes further that it would be very difficult for the applicant to prove her case in the event of her bringing civil proceedings against the alleged attackers, seeking damages for the injuries sustained, without their prior criminal conviction. However, even assuming that the applicant could have obtained damages in civil proceedings, the Court is inclined to believe that effective deterrence against attacks on the physical integrity of a person requires efficient criminal-law mechanisms that would ensure adequate protection in that respect (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, § 50, ECHR 2003 ‑ XII ). 37. As to the Government ’ s arguments concerning the possibility of a private prosecution, the Court observes that the applicant complained to the public prosecutor of the treatment to which she claimed to have been subjected. Furthermore, acting as a subsidiary prosecutor, she lodged with a court a request for an investigation in respect of her attackers. In the Court ’ s view, these remedies could have resulted in the identification and the punishment of those responsible. The applicant must therefore be regarded as having brought the substance of her complaint to the notice of the national authorities and as having sought redress through the national channels for her complaint. 38. The Court finds that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ arguments 39. The applicant argued that the national authorities had failed to afford her adequate protection against violence inflicted by private individuals. In that connection she maintained that Croatian criminal law was insufficient when it came to privately inflicted violence. It denied her adequate protection since the attackers had not been prosecuted by the State Attorney ’ s Office of its own motion and her attempts for pursuing her criminal complaint against her attackers remained futile. She further argued that her request for an investigation had been comprehensible and contained all the required information. The competent investigation judge had failed to instruct her about the precise alleged insufficiencies of her request. 40. As regards the minor-offences proceedings, the applicant argued that these proceedings had not at all concerned the physical assault on her, but only verbal abuse, and that they had been terminated because the prosecution had become time-barred. In this connection she pointed out that the statutory limitation for a minor offence was two years and that the Split Minor-Offences Court had scheduled the first hearing for 4 February 2005, about a year and a half after the event in question had taken place, thus causing the prosecution to become time-barred after a short period. 41. The Government argued that the Convention did not guarantee the right to have criminal proceedings instituted against third persons. They argued that in the present case the police had reacted promptly and submitted a request for minor-offences proceedings to be instituted against the attackers. In those proceedings all the relevant facts had been established and it had been concluded that the individuals in question had only verbally abused the applicant. They further maintained that the State ’ s positive obligations could not require the criminal prosecution of the attackers or their conviction. Therefore, the fact that the police had requested the institution of minor-offences proceedings had been sufficient. 42. The competent State Attorney ’ s Office had concluded that the applicant had sustained bodily injuries of a lesser nature and that there had been no need for it to institute criminal proceedings against the offenders of its own motion. Furthermore, the applicant had had the possibility of bringing a private prosecution, which she had failed to do. Instead, she had submitted an incomprehensible request for an investigation, which had been declared inadmissible. 43. The Government admitted that the applicant could have had difficulties in complying with the strict formal requirements of the rules of criminal procedure. However, she could have sought legal aid from the Croatian Bar Association or the State authorities, which she had failed to do. 2. The Court ’ s assessment 44. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, cited above, §§ 23-24, and Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002 ‑ I and 27 ). 45. As regards respect for private life, the Court has previously held, in various contexts, that the concept of private life includes a person ’ s physical and psychological integrity. Under Article 8 the States have a duty to protect physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see X and Y v. the Netherlands, cited above, §§ 22 and 23; Costello-Roberts v. the United Kingdom, 25 March 1993, § 36, Series A no. 247 ‑ C; D.P. and J.C. v. the United Kingdom, no. 38719/97, § 118, 10 October 2002; M.C. v. Bulgaria, cited above, §§ 150 and 152; and Bevacqua and S. v. Bulgaria, cited above, § 65). 46. The Court reiterates that its task is not to substitute itself for the competent Croatian authorities in determining the most appropriate methods for protecting the individuals from the attacks on their personal integrity, 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 handling the applicant ’ s case, has been in breach of its positive obligation under Article 8 of the Convention (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24). 47. As to the present case, the Court notes that the applicant alleged that three individuals had confronted her in front of the flat in question and shouted obscenities at her, and one of them had kicked her several times, pulled her by her clothes and hair and thrown her down the stairs. The medical documentation shows that the applicant sustained blows to her elbow and tailbone. The Court attaches importance to the fact that the attack occurred in connection with the applicant ’ s attempt to enter a flat in respect of which she had obtained a court decision allowing her to occupy it. That decision was enforced with the assistance of the court ’ s officials only a day before the event in question. The attackers also threatened to kill her if she returned. The Court considers that acts of violence such as those alleged by the applicant require the States to adopt adequate positive measures in the sphere of criminal-law protection. 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 ). 48. As to the criminal-law mechanisms provided in the Croatian legal system the Court notes that violent acts committed by private individuals are prohibited in a number of separate provisions of the Criminal Code. The Court observes further that the Croatian criminal law distinguishes between criminal offences to be prosecuted by the State Attorney ’ s Office, either of its own motion or upon 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. The Court also notes that the applicant alleged that the acts of violence committed against her constituted, inter alia, the criminal offences of violent behaviour and making threats. Prosecution in respect of both these offences is to be undertaken by the State Attorney ’ s Office, of its own motion in the case of the former offence and on a private application in the case of the latter. 49. The Court further observes that the Croatian legal system also envisages the injured party acting 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 upon 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. Furthermore, a criminal complaint lodged in due time in respect of a criminal offence subject to private prosecution is to be treated as a private prosecution (see Article 48(3) of the Code of Criminal Procedure). 50. In the specific circumstances of the present case, without overlooking the importance of protection from attacks on one ’ s physical integrity, the Court cannot accept the applicant ’ s arguments that her Convention rights could be secured only if the attackers were prosecuted by the State and that the Convention requires State-assisted prosecution. In this connection the Court is satisfied that in the present case domestic law afforded the applicant a possibility to pursue the prosecution of her attackers, either as a private prosecutor or as the injured party in the role of a subsidiary prosecutor, and that the Convention does not require State-assisted prosecution in all cases. 51. The Court will next 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 8 of the Convention. 52. The Court notes that in her criminal complaint of 2 October 2003, filed with the Split Municipality State Attorney ’ s Office, the applicant had already submitted a very detailed description of the events in question, alleging that they entailed a number of offences. When she was informed that the State Attorney ’ s Office had declined to prosecute of its own motion, the applicant, pursuant to the relevant provisions of the Code of Criminal Procedure, lodged a request for an investigation with the competent investigation judge of the Split County Court. As to the Government ’ s contention that the applicant should have brought a private prosecution against the three attackers on charges of causing bodily injury of a lesser nature, the Court notes that the act of violence in question could have been differently classified under domestic law. In her initial criminal complaint, as well as in her subsequent request for an investigation, the applicant, inter alia, alleged that the acts against her constituted the criminal offences of violent behaviour and making serious threats. These allegations were corroborated with a detailed description of the acts in question, which consisted in her being kicked and pushed by three individuals, who shouted insults and obscenities at her and threatened her, saying that she would disappear and be disposed of if she were to come back. In the Court ’ s view, the applicant ’ s opinion that these acts went beyond the criminal offence of causing bodily injury of a lesser nature might not have been seen as unfounded. Therefore, the applicant ’ s decision not to bring a private prosecution on the charges of causing bodily injury of a lesser nature but instead to request an investigation against her attackers on charges of violent behaviour and making serious threats was in compliance with the rules of the Code of Criminal Procedure concerning the role of the injured party as a subsidiary prosecutor. 53. The Court observes next that in her initial request for an investigation the applicant had already made it clear that she sought an investigation, inter alia, into her allegations that on 6 June 2003 three individuals had attacked her. She named the individuals concerned and listed their addresses. She alleged that the acts of violence against her constituted, inter alia, the criminal offences of making threats and violent behaviour. She submitted relevant medical documentation in support of her allegations. However, the domestic authorities declared her request inadmissible as being incomplete, without specifying exactly what formal requirements were not met. 54. It might be true that the applicant ’ s submission did not strictly follow the exact form required for requests lodged with the State Attorney ’ s Office in criminal proceedings. In this connection the Court notes that the applicant was not legally represented in the proceedings at issue. She is unemployed and obviously lacking the means for legal representation at her own expense. Furthermore, under the relevant provisions of the Code of Criminal Procedure (Article 60), the applicant had no right to legal aid since the alleged criminal offences did not carry a sentence of imprisonment exceeding three years. 55. The Court also notes that there had already been a police report on the incident, which also described the acts of violence against the applicant, and that the Split Municipality State Attorney ’ s Office had also produced an account of the event in question. Therefore, it is difficult to accept the conclusion of the Split County Court investigation judge that the applicant ’ s request for an investigation was to be dismissed on the grounds that it was incomprehensible and incomplete. On the contrary, the Court finds that the applicant had made it clear that she was seeking an investigation into an act of violence against her. She showed great interest in her case and made serious attempts to have the attackers prosecuted. Her submissions were sufficient to enable the competent investigation judge to proceed upon her request. They contained all the information required under Article 188(3) of the Code of Criminal Procedure, namely the identification of the person against whom the request was submitted, a description and the legal classification of the offence at issue, the circumstances confirming a reasonable suspicion that the person concerned had committed the offence at issue, and the existing evidence. 56. As to the Government ’ s assertion that the applicant had failed to bring a private prosecution, the Court notes that the applicant did lodge a timely criminal complaint with the Split Municipality State Attorney ’ s Office (see paragraph 17 above). On 11 November 2003 that office decided not to open an official investigation on the ground that the act in question qualified as a criminal offence for which a prosecution had to be brought privately by the victim (see paragraph 18 above). Under Article 48(3) of the Code of Criminal Procedure, in these circumstances the applicant ’ s criminal complaint had to be treated as a private prosecution (see paragraph 25 above). However, the competent authorities completely ignored that rule and failed to proceed with the applicant ’ s criminal complaint. 57. The above analysis shows firstly that the relevant State authorities decided not to prosecute the alleged perpetrators of an act of violence against the applicant. Furthermore, the relevant authorities did not allow the applicant ’ s attempts at a private prosecution. Lastly, as to the Government ’ s contention that adequate protection was given to the applicant in the minor-offences proceedings, the Court notes that those proceedings were terminated owing to statutory limitation and were thus concluded without any final decision on the attackers ’ guilt. In view of these findings, the Court holds the view that the decisions of the national authorities in this case reveal inefficiency and a failure to act on the part of the Croatian judicial authorities. 58. 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 attack on her physical integrity and showed that 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 8 of the Convention. 59. In view of that finding, the Court considers that no separate issue remains to be examined under Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 60. The applicant also complained about the length of the civil and enforcement proceedings she had instituted in the Split Municipal Court. She 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 ... hearing within a reasonable time by [a] ... tribunal ...” 61. The Government contested that argument. A. Admissibility 62. The Court notes at the outset that the applicant complained about the length of the proceedings in question, firstly to the Constitutional Court about the length of the civil proceedings and then to the Split County Court about the length of the enforcement proceedings. While the former dismissed the applicant ’ s complaint, the latter on 31 March 2008 allowed her complaint, awarded her HRK 5,000 in compensation and ordered the Split Municipal Court to complete the enforcement proceedings within six months. In view of these findings, the question arises whether the applicant can still be regarded as a victim of the violation alleged. 63. The Court notes firstly that the Split County Court examined only the length of the enforcement proceedings. At that time the enforcement proceedings had been pending for five years at two levels of jurisdiction. The compensation awarded by the County Court does not correspond to what the Court would have been likely to award under Article 41 of the Convention in respect of the same period. It therefore cannot be regarded as adequate in the circumstances of the case (for the principles established in the Court ’ s case-law, see Cocchiarella v. Italy [GC], no. 64886/01, §§ 65- 107, ECHR 2006-V, and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006-V). In these circumstances the applicant has not lost her status as a victim within the meaning of Article 34 of the Convention. 64. Having regard to the above facts, the Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 65. The applicant argued that the length of the proceedings which had commenced in August 1999 had been excessive. She maintained that the civil and enforcement proceedings were to be regarded as a whole. 66. The Government submitted that there were two separate sets of proceedings: the civil proceedings, which had ended in March 2003, and the enforcement proceedings, which had commenced in May 2003. In the Government ’ s view the Court should examine only the length of the latter set of proceedings. They admitted that the applicant had not contributed to the length of these proceedings and that they had not been complex. However, the relevant authorities had shown due diligence and complied with the reasonable-time requirement. 67. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 68. The Court considers that the period to be taken into consideration began on 2 August 1999, when the applicant brought her civil action in the Split Municipal Court. It notes that the civil proceedings ended on 7 March 2003. The Court further notes that on 31 March 2003 the applicant sought an enforcement order in the Split Municipal Court. In this connection the Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the “hearing” for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports 1997-II, and Plazonić v. Croatia, no. 26455/04, § 47, 6 March 2008). Accordingly, the Government ’ s argument that there were two different sets of proceedings cannot be accepted. 69. The proceedings ended on 8 January 2008. Thus, in total, they lasted eight years, five months and six days. Both the civil and the enforcement proceedings were examined at two levels of jurisdiction. As to the civil proceedings, the Court notes firstly that under the relevant national law, proceedings concerning disturbance of possession are of an urgent nature. Despite that, it took the national courts more than three years and seven months to conclude the case. In this connection the Court emphasises the Government ’ s submission that the applicant herself did not contribute at all to the length of those proceedings. The Court notes further that the enforcement proceedings lasted fifty-seven months. Even the Split County Court admitted that the length of the enforcement proceedings was excessive. 70. Having examined all the material submitted to it, the Court finds that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. In view of the above considerations, the Court concludes that there has been a breach of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 71. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 72. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. 73. The Government deemed the applicant ’ s claim for just satisfaction unfounded and excessive. 74. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,0 00 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 75. The applicant also claimed HRK 19,300 for her legal representation before the Court and HRK 745.95 for other costs and expenses incurred before the Court. 76. The Government made no comments. 77. The Court considers that the amount claimed is not excessive in light of the nature of the dispute, particularly given the complexity of the case. It therefore considers that the applicant ’ s costs and expenses should be met in full and thus awards her EUR 2,820, less EUR 850 already received in legal aid from the Council of Europe, plus any tax that may be chargeable to her. C. Default interest 78. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, on account of the failure by the Croatian authorities to adequately protect the applicant from an attack on her physical integrity and of the manner in which the national criminal-law mechanisms had been implemented, contrary to the State’s positive obligations under Article 8. |
745 | Waste collection, management, treatment and disposal | THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 94. Relying on Articles 2 and 8 of the Convention, the applicants submitted that in failing to take the requisite measures to guarantee the proper functioning of the public waste disposal service and in applying an inadequate legislative and administrative policy the State had caused serious damage to the environment in their region and endangered their lives and their health and that of the local population in general. They further maintained that the public authorities had neglected to inform the people concerned of the risks of living in a polluted area. 95. The Government disagreed. 96. Since it is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I), the Court considers, regard being had to its case-law in the matter (see López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303 ‑ C; Guerra and Others, cited above, § 57; Moreno. Gómez v. Spain, no. 4143/02, 16 November 2004; and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003 ‑ VIII), that the applicants’ complaints should be examined from the standpoint of the right to respect for one’s private life and one’s home enshrined in Article 8 of the Convention, the relevant provisions of which read 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 97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. The merits 1. The parties’ submissions a) The Government 98. The Government acknowledged that “the almost disastrous management of the collection, treatment and disposal of the waste produced in certain parts of the province of Naples” had led to the accumulation of refuse in the streets of certain towns and cities and to the appearance of illegal dumping sites. However, they submitted that the acute phase of the crisis had lasted only about five months, from the end of 2007 to May 2008, and that in any event Somma Vesuviana had not been affected. 99. They further submitted that the difficulties encountered in Campania were attributable to force majeure factors such as the presence of organised crime in the region, failure by the waste disposal contractors to fulfil their obligations under the concession contracts, the lack of companies capable of guaranteeing continuity of service and the opposition of the population to the creation of landfills and RDF production sites. They also explained that the fires in the streets had been lit by local people to burn the waste, and therefore the State could not be held responsible. 100. In any event, in the Government’s submission the Italian authorities had fulfilled their duty of care and taken adequate measures in response to the “crisis”. On the one hand they had brought criminal proceedings against those responsible for the poor management of the situation. And on the other they had allegedly taken appropriate legislative measures, including Legislative Decree no. 90/08, which they claim had put in place an effective system which had resulted in the collection of the waste, the elimination of illegal landfills and the recommissioning of the waste treatment and disposal plants (see paragraph 68 above). 101. The Government further submitted that they had also carried out several studies on the causes and effects of the “waste crisis” in Campania and given the population information enabling them to assess their degree of exposure to the risks associated with waste collection, treatment and disposal. The causes of the waste crisis in Campania had been analysed by three parliamentary commissions, whose conclusions had been published in reports. The Ministry of Health and the civil emergency planning department had allegedly commissioned various studies to determine the impact of the crisis on the environment and human health ... According to the Government these studies had revealed that the “waste crisis” had had no significant impact on the environment – except for a momentary peak in water pollution levels not directly linked to the presence of waste – and no negative effects on human health. The results had been made public at public seminars and conferences. Lastly, the Government submitted, a documentation centre on health and the environmental pollution caused by the waste, managed by the National Disease Prevention and Control Centre and the Campania Region, was being set up. b) The applicants 102. The applicants submitted that the failings of the authorities in the management of the crisis had caused damage to the environment and put their lives in danger. 103. They argued that the respondent State had also failed in its obligation to provide information enabling the people concerned to assess their degree of exposure to the risks associated with waste collection and disposal because they had not made public the findings of the study commissioned by the civil emergency planning department ... Furthermore, the Italian Health Institute study, presented at the prefecture in Naples in January 2009 ..., had allegedly revealed a link between tumour levels and the presence of landfills in the area comprising the municipalities of Acerra, Nola and Marigliano (bordering on Somma Vesuviana). 2. The Court’s assessment a) General principles 104. 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 López Ostra, cited above, § 51, and Guerra and Others, cited above, § 60). 105. It further points out that Article 8 does not merely compel the State to abstain from arbitrary interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. In any event, whether the question is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicant’s rights under paragraph 1 of Article 8 or in terms of an "interference by a public authority" to be justified in accordance with paragraph 2, the applicable principles are broadly similar (see López Ostra, cited above, § 51, and Guerra and Others, cited above, § 58). 106. In the context of dangerous activities in particular, States have an obligation to set in place regulations geared to the special features of the activity in question, particularly with regard to the level of risk potentially involved. 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, mutatis mutandis, Oneryildiz v. Turkey, [GC], no. 48939/99, § 90, ECHR 2004 ‑ XII). 107. As to the procedural obligations under Article 8, the Court reiterates that it attaches particular importance to public access to information that enables them to assess the risks to which they are exposed (see Guerra and Others, cited above, § 60; Taşkin and Others v. Turkey no. 46117/99, § 119, ECHR 2004-X; Giacomelli v. Italy, no. 59909/00, § 83, ECHR 2006 ‑ XII; and Tătar v. Romania, no. 67021/01, § 113, ECHR 2009 ‑ ... (extracts)). It further reiterates that Article 5 § 1 (c) of the Aarhus Convention, which Italy has ratified, requires each Party to ensure that “in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected”. ... b) Application of the above principles to the instant case 108. The Court has already noted ... that the municipality of Somma Vesuviana, where the applicants live or work, was affected by the “waste crisis”. It notes that a state of emergency was declared in Campania from 11 February 1994 to 31 December 2009 and that the applicants were forced to live in an environment polluted by refuse left in the streets at least from the end of 2007 until May 2008. The Court considers that this situation may have led to a deterioration of the applicants’ quality of life and, in particular, adversely affected their right to respect for their homes and their family life. Article 8 therefore applies in the present case. The Court further notes that the applicants have not alleged that they were affected by any pathologies linked to exposure to waste, and that the scientific studies submitted by the parties reach opposite conclusions as to the existence of a causal link between exposure to the waste and an increased risk of developing pathologies such as cancer or congenital malformations. In these conditions, although the Court of Justice of the European Union, when examining the waste disposal situation in Campania, considered that the accumulation of large quantities of refuse along public roads and in temporary storage areas exposed the health of the local inhabitants to certain danger (see judgment C-297/08, cited in paragraphs 55 and 56 above), the Court cannot conclude that the applicants’ lives or health were threatened. That said, however, Article 8 may be relied on even in the absence of any evidence of a serious danger to people’s health (see López Ostra, cited above, § 51). 109. The Court considers that the present case does not concern direct interference with the applicants’ right to respect for their homes and their private life brought about by the action of the public authorities, but rather the alleged failure of the authorities to take adequate steps to ensure the proper functioning of the waste collection, treatment and disposal service in the municipality of Somma Vesuviana. It accordingly considers it appropriate to examine the case from the standpoint of the State’s positive obligations under Article 8 of the Convention (see Guerra and Others, cited above, § 58). 110. The collection, treatment and disposal of waste are without a doubt dangerous activities (see, mutatis mutandis, Oneryildiz, cited above, § 71). That being so, the State was under a positive obligation to take reasonable and adequate steps to protect the right of the people concerned to respect for their homes and their private life and, more generally, to live in a safe and healthy environment (see Tătar, cited above, § 107). Regard must also be had to the margin of appreciation the States enjoy in the choice of the concrete means they use to fulfil their positive obligations under Article 8 of the Convention (see Fadeyeva v. Russia, no. 55723/00, § 96, ECHR 2005 ‑ IV). In the present case, from 2000 to 2008 the waste treatment and disposal service was entrusted to private companies, while the waste collection service in the municipality of Somma Vesuviana was provided by several publicly owned companies. The fact that the Italian authorities handed over the management of a public service to third parties does not relieve them of the duty of care incumbent on them under Article 8 of the Convention (see López Ostra, cited above, §§ 44-58). 111. The Court notes that from May 2008 the Italian State took various measures and initiatives to overcome the difficulties in Campania, and that the state of emergency declared there on 11 February 1994 was lifted on 31 December 2009. The respondent Government acknowledged the existence of a crisis situation, it is true, but it classified that situation as force majeure. In this connection the Court will simply reiterate the terms of Article 23 of the Articles of the United Nations International Law Commission on State responsibility for internationally wrongful acts, according to which “ force majeure is “an irresistible force or ... an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform [an international] obligation”. ... Regard also being had to the conclusions of the Court of Justice of the European Union in case no. C-297/08, cited above, the Court considers that the circumstances relied on by the Italian State cannot be considered as force majeure. 112. In the Court’s opinion, even assuming, as the Government have affirmed, that the acute phase of the crisis lasted only five months – from the end of 2007 to May 2008 – and in spite of the margin of appreciation left to the respondent State, there is no denying that the protracted inability of the Italian authorities to ensure the proper functioning of the waste collection, treatment and disposal service adversely affected the applicants’ right to respect for their homes and their private life, in violation of Article 8 of the Convention in its substantive aspect. 113. However, as to the procedural aspect of Article 8 and the complaint concerning the alleged failure to provide information that would have enabled the applicants to assess the risk they ran, the Court points out that the studies commissioned by the civil emergency planning department were made public in 2005 and 2008. It accordingly considers that the Italian authorities discharged their duty to inform the people concerned, including the applicants, of the potential risks to which they exposed themselves by continuing to live in Campania. There has therefore been no violation of Article 8 of the Convention in this regard. ... IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 119. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 120. The applicants each claimed 15,000 euros (EUR) for the non ‑ pecuniary damage allegedly sustained. 121. The Government objected, arguing that the claim only concerned Mr Errico di Lorenzo, the lawyer acting before the Court on his own behalf. 122. The Court notes that Mr di Lorenzo claimed compensation for non ‑ pecuniary damage not only for himself but for “each applicant”, so it considers that the claim for compensation covers all the applicants. In the circumstances of the present case, however, the Court considers that the violations of the Convention it has found constitute sufficient just satisfaction for any non-pecuniary damage. ... | The Court observed that the collection, treatment and disposal of waste were hazardous activities; as such, the State had been under a duty to adopt reasonable and appropriate measures capable of safeguarding the right of those concerned to a healthy and protected environment. In this case, the Court held that there had been a violation of Article 8 of the Convention in its substantive aspect: even if one took the view that the acute phase of the crisis had lasted only five months – from the end of 2007 until May 2008 – and in spite of the margin of appreciation left to the Italian State, the fact remained that the Italian authorities had for a lengthy period been unable to ensure the proper functioning of the waste collection, treatment and disposal service, resulting in an infringement of the applicants’ right to respect for their private lives and their homes. The Court further held that there had been no violation of Article 8 in its procedural aspect: the studies commissioned by the civil emergency planning department had been published by the Italian authorities in 2005 and 2008, in compliance with their obligation to inform the people concerned, including the applicants, of the potential risks to which they exposed themselves by continuing to live in Campania. Lastly, the Court held that there had been a violation of Article 13 (right to an effective remedy) of the Convention in so far as the complaint related to the absence of effective remedies in the Italian legal system by which to obtain redress for the damage sustained was concerned. |
532 | Death in police custody or in detention | II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS A. Duty to investigate death and ill ‑ treatment 65. By Article 115 of the CC, murder is punishable by ten to twenty years ’ imprisonment. Article 116 § 1 ( 2 ) of the CC provides that if a murder is committed by a police officer in the course of, or in connection with the performance of his or her duties, it is punishable by fifteen to twenty years ’ imprisonment, or life, with or without parole. 66. Article 127 § 1 of the CC makes it an offence to aid or incite suicide, if the person concerned does subsequently commit suicide or makes an attempt to do so. By paragraph 3 of that Article, it is an offence to drive another to suicide or attempted suicide through cruel treatment or systematic humiliation, if this other person is financially or otherwise dependent on the offender, on condition that the offender contemplated that eventuality. Paragraph 4 of that Article makes it an offence to act contrary to the previous paragraph even if the offender does so out of negligence. 67. Articles 128, 129 and 130 of the CC make it an offence to inflict a light, intermediate or severe bodily injury on another. Article 131 § 1 (2) of the CC provides that if the injury is inflicted by a police officer in the course of or in connection with the performance of his or her duties, the offence is aggravated. 68. By Article 287 of the CC, as in force at the material time, it was an offence for an official, when acting in the course of, or in connection with the performance of his or her duties, to illegally coerce an accused, a witness or an expert with a view to obtaining a confession, a statement or an opinion. 69. All of the above offences are publicly prosecutable (Article 161 of the CC and Article 21 § 3 of the CCP, as in force at the material time ). 70. Article 192 §§ 1 and 2 of the CCP, as in force at the material time, provided that proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator. The prosecutor or the investigator had to open an investigation whenever he or she received information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCP ). If the information given to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCP, as in force at the material time). A prosecutor could discontinue an investigation when, inter alia, there was no evidence of an offence, or the alleged act did not constitute an offence (Articles 21 § 1 (1) and 237 § 1 (1) and (2) of the CCP ). At the material time his or her decision was subject to appeal to a higher prosecutor (Article 181 of the CCP, as in force at the relevant time ). In 2001 the CCP was amended to provide for judicial review of a prosecutor ’ s decision to discontinue an investigation. 71. At the material time the offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the CCP, as in force at the relevant time ). In December 1993 this text was amended to provide that the military courts no longer had jurisdiction over such offences (Article 388 § 1 (2) of the CCP, as amended in December 1993 ). A new amendment in June 1995 reverted to the old regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and in force until 1 January 2000 ). Where a case would fall within the jurisdiction of the military courts, the preliminary investigation is handled by military investigators and prosecutors. B. Arrest and detention 72. A person may be arrested and placed in detention in the context of pending criminal proceedings, if charges have been brought against him or her (Article 146 § 1 taken in conjunction with Article 207 of the CCP ). 73. A person could also be arrested by order of an investigator and detained for up to three days if he or she was suspected of having committed an offence punishable by imprisonment, but there was not enough evidence to bring charges. The circumstances in which this could occur were limited and included the cases where ( i ) he or she had been caught during or immediately after the commission of the alleged offence, ( ii ) he or she had been named by an eyewitness, ( iii ) overt traces of the alleged offence were found on the person ’ s body or clothes or in his or her place of abode, or ( iv ) the person tried to flee or his or her identity could not be established and there was enough information that he or she might have committed an offence (Article 202 § 1 of the CCP, as in force at the material time ). 74. Section 20(1) of the National Police Act of 1976, in force at the relevant time, provided that the police could also arrest a person if ( i ) his or her identity could not be ascertained, ( ii ) he or she behaved violently or in breach of public order, ( iii ) he or she refused, without just cause, to appear after having been duly summoned, ( iv ) he or she knowingly impeded the police from carrying out its duties, ( v ) he or she carried or used unlicensed firearms, cold weapons, or other dangerous devices. In all these cases the police had to immediately carry out the necessary checks. After that, but in no case later than three hours after the person ’ s arrest, he or she had to be released, if no order for his or her detention was made. Only when the person ’ s identity could not be ascertained that deadline was extended to twenty ‑ four hours (section 20(2) of the Act). C. The United Nations Model Autopsy Protocol 75. The “Manual on the Effective Prevention and Investigation of Extra ‑ legal, Arbitrary and Summary Executions” ( U.N. Doc. E/ST/CSDHA/.12 (1991) ), published by the United Nations in 1991, includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel. In its introduction, it is noted that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details: “It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope. The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results... It is important to have as few omissions or discrepancies as possible, as proponents of different interpretations of a case may take advantage of any perceived shortcomings in the investigation. An autopsy performed in a controversial death should meet certain minimum criteria if the autopsy report is to be proffered as meaningful or conclusive by the prosector, the autopsy ’ s sponsoring agency or governmental unit, or anyone else attempting to make use of such an autopsy ’ s findings or conclusions. ” D. Reports of international organisations on alleged discrimination against Roma 76. In a number of reports the European Commission against Racism and Intolerance at the Council of Europe has expressed concern about racially motivated police violence, particularly against Roma. Certain other bodies and non-governmental organisations have also reported in the last several years numerous incidents of alleged racial violence against Roma in Bulgaria, including by law enforcement agents. A detailed account of these reports may be found in the Court ’ s judgment in the case of Nachova and Others v. Bulgaria ( nos. 43577/98 and 43579/98, §§ 55 ‑ 59, ECHR 200 5 ‑ ...). THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION 77. The applicants alleged that Mr Stefanov had been ill ‑ treated and had died as a result of the actions of the police officers. They also complained that no effective investigation had been conducted into the circumstances surrounding his death. They argued that there had been a breach of Article 2 of the Convention, which provides: “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article 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.” 78. The Government disputed those allegations. A. The parties ’ submissions 1. The applicants 79. The applicants submitted that Mr Stefanov ’ s fall from the window of room 36 had been either a suicide attempt provoked by severe torture, or an attempt by the police to cover up his prior ill ‑ treatment. There was no evidence that the fall had been an attempt to escape, since the window was situated at 9.6 meters above ground level. No one could be expected to jump from such a height and subsequently be able to run away. There were no structures which could cushion the blow resulting from the fall; in particular, it was obvious that Mr Stefanov ’ s body had not touched the iron sheet roof before hitting the ground. The assertion that Mr Stefanov had made an attempt to flee was even more improbable in view of the facts that he had been handcuffed and that all of his injuries were inflicted on his upper body, which indicated that he had fallen head down. There was likewise no indication that the fall had been the result of a suicide attempt. Mr Stefanov had no history of mental illness and had been facing only a trivial burglary charge. Moreover, such an explanation had not been proffered during the investigation. 80. The only plausible explanations of Mr Stefanov ’ s fall were either a suicide attempt provoked by torture, or an intentional push by the police officers in an effort to conceal his prior torture. These hypotheses were supported by the number and extent of Mr Stefanov ’ s injuries, most of which he had probably suffered before his fall, during questioning. There was no indication that these injuries had been self ‑ inflicted or sustained at the time of his arrest, or before that. 81. The applicants submitted that they could not prove beyond doubt the exact cause of Mr Stefanov ’ s fall, but maintained that it was for the authorities to provide a plausible explanation, which they had failed to do. 82. In deciding that the fall had been the result of an attempt to flee, the prosecution authorities had heavily relied on the statements of lieutenant I.C., chief sergeant H.B. and Mr D.O.. However, those were extremely unreliable. First, the two police officers had an obvious interest in exonerating themselves, whereas Mr D.O. was favourably treated by the police. Second, they had been inconsistent and had changed over time and had obviously been geared towards exonerating the police officers from any responsibility for Mr Stefanov ’ s death. Moreover, the tenor of Mr D.O. ’ s statements had remarkably followed the contours of lieutenant I.C ’ s statements. 83. In concluding that all of Mr Stefanov ’ s injuries had been sustained during a two ‑ stage fall, the authorities had also relied on the results of the autopsy and the conclusions of the subsequent medical expert reports. However, the autopsy report was deficient in a number of respects and did not meet the standards laid down in the United Nations Model Autopsy Protocol (see paragraph 75 above). For instance, the conclusion that all injuries on Mr Stefanov ’ s body had been sustained during the fall was based on the completely uncorroborated assumption that the fall had been a two ‑ stage one. Moreover, the autopsy report and the subsequent medical expert report did not contain a detailed description of the manner in which each injury had been sustained, instead averring in a general manner that all injuries had been the result of a two ‑ stage fall. 84. As regards the effectiveness of the investigation, the applicants argued that it had been slow, biased and aimed at exonerating the police officers of all responsibility for Mr Stefanov ’ s death. They pointed to a number of deficiencies in its conducting. In particular, the position of where Mr. Stefanov ’ s body lay on the ground after the fall had not been marked. The investigation had not started immediately. Before the remitting by the Military Prosecutor ’ s Office, the investigation had been very superficial. The dummy test had been carried out four years after the events and the medical experts had not received proper instructions. Moreover, the applicants had not been regularly informed about the unfolding of the investigation and had been hindered in their efforts to intensify it. The applicants also referred to their arguments in respect of the deficiencies in the autopsy and the medical expert reports. 2. The Government 85. The Government submitted that Mr Stefanov ’ s injuries had been sustained during his fall. The dummy test carried out during the investigation had shown that if he had jumped slightly rightwards, he could have hit either the iron sheet roof or the concrete edge beneath it, and only then fallen on the ground. All medical expert reports had concluded that he had no injuries which could not be explained by such a sequence of events. It followed that the applicants ’ allegations of ill ‑ treatment were groundless. The absence of abuse was further demonstrated by the statements of all the witnesses. There was no indication of collusion between them. All of them had stated that Mr Stefanov had jumped of his own will. There was no indication that he had been in a physical contact with any police officer at that time, or that force had been used against him. No traces of alcohol had been found in his blood. However, the forensic doctor had caveated the above finding with the statement that had Mr Stefanov had consumed any alcohol prior to his arrest, it would have decomposed beyond detection during the night before the incident. Mr D.O. had stated that neither he, nor Mr Stefanov had been subjected to ill-treatment either at the time of their arrest or later. The discrepancy between the statements of lieutenant I.C. and Mr D.O. as to whether the latter had turned himself in or had been arrested indicated that there was no collusion between them and that Mr D.O. had not been pressured to corroborate the police officers ’ version of the events. 86. The Government concluded that Mr Stefanov ’ s death had not been caused by the actions of the police officers. 87. The Government further submitted that the investigation had fully complied with the principles set out in the Court ’ s case ‑ law. That was apparent from the numerous acts of the prosecution authorities and the medical expert reports. The obligation of the authorities to gather evidence had been fulfilled in good faith. Mr Stefanov ’ s relatives had been notified of the discontinuations of the investigation and the reasons therefor. 88. The investigation had been opened exactly with a view to establishing the circumstances of Mr Stefanov ’ s death. The conclusion of the military investigator of 30 June 1994 that there was no indication of an offence having been committed was based on the medical expert reports, the authors of which were under a duty to state the truth. Their findings were fully coherent with the statements of lieutenant I.C. 89. The alleged discrepancies between the various statements of lieutenant I.C. and Mr D.O. were not that material, regard being had that the lieutenant ’ s first statement had been made shortly after the incident, whereas his second statement had been made after a considerable time and had thus been more considered. It would be excessive to conclude that the differences between these statements were due to an intention to hide the truth or evade criminal liability. Moreover, this issue had not been raised by the applicants in their appeals against the discontinuation of the investigation. 90. The investigation had undergone several stages and the case had been remitted several times for further action. The issue whether the injuries on Mr Stefanov ’ s body indicated assault had been examined on several occasions. All eyewitnesses had been questioned more than once, except for Mr D.O., whose whereabouts could not be established. The case had been examined by several levels of prosecution. It could not be argued that an investigation should always result in finding a person guilty of an offence, especially bearing in mind the criminal ‑ law standard of proof beyond reasonable doubt. 91. In sum, the Government were of the view that the investigation had been complete, objective and comprehensive. B. The Court ’ s assessment 1. Mr Stefanov ’ s death (a) General principles 92. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective. 93. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivations of life to the most careful scrutiny, taking into consideration all relevant circumstances. 94. Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death. 95. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the co ‑ existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among many other authorities, Anguelova v. Bulgaria, no. 38361/97, §§ 109 ‑ 11, ECHR 2002 ‑ IV ). (b) Application of those principles to the present case 96. The Court observes that there is no indication that Mr Stefanov was injured upon being taken into custody on 4 June 1993. It remains to be examined whether the Government ’ s assertion that his fall – which was apparently the source of the fatal injuries to his head – was unprovoked is plausible, and whether their averment that all of his numerous injuries were sustained exclusively during his fall is satisfactory and convincing. 97. In this connection, the Court notes that the domestic authorities based their conclusion that all of Mr Stefanov ’ s injuries had been sustained exclusively during his fall on the hypothesis that his body had hit an object – the metal sheet roof or a concrete edge – before impacting against the ground (see paragraphs 22, 23, 30, 37, 38, 42, 45, 55, 59 and 60 above), the apparent reason being that the injuries, that were spread about Mr Stefanov ’ s body, could not have been the result of a single blow. The Court further observes that this version was initially based on the note by the forensic doctor in his report that the “on ‑ duty police officer” had informed him that Mr Stefanov ’ s body had hit the iron sheet roof and only then the ground (see paragraph 22 above). This seemed to be corroborated by lieutenant I. C. ’ s statement, made, significantly, after the report had been drawn up, that he had seen Mr Stefanov hit the roof before hitting the ground (see paragraphs 17 and 3 6 above). That statement differed from the lieutenant ’ s first statement, made immediately after the events, that he had not seen Mr Stefanov ’ s fall, as he had managed to reach and look out of the window of room 36 only when Mr Stefanov ’ s body was already lying on the ground (see paragraphs 17 and 3 4 above). It also differed from the lieutenant ’ s third statement that he did not exactly remember the detailed sequence of the fall and had no recollection of whether he had been able to see Mr Stefanov falling at all (see paragraphs 17 and 56 above), which was made after the second on ‑ site inspection and the dummy test had made it clear that his body had not touched the roof (see paragraph 49 above). Contrary to what the Government argued, the Court finds these differences material, in particular as they were to a large degree determinative of the conclusion that Mr Stefanov had not sustained any injuries prior to his fall. The Court furthermore notes that when the dummy test established that Mr Stefanov could not have hit the iron roof before hitting the ground, thus making this theory implausible, the medical experts readily advanced the theory that he had struck the concrete edge before hitting the ground (see paragraph 55 above). On the basis of this theory the authorities again eagerly concluded that all of Mr Stefanov ’ s injuries were exclusively caused by his fall, without exploring other hypotheses as to their possible source (see paragraphs 59 and 60 above). Their determination on this point seems very questionable. 98. It furthermore seems unlikely that all of Mr Stefanov ’ s numerous injuries, spread about his trunk, limbs and head (see paragraphs 23 and 27 above), could be solely the product of a fall, even a two ‑ stage one. In this connection, the Court notes the insufficient description of the physical ways through which Mr Stefanov ’ s injuries had been sustained. The forensic doctor who performed the autopsy and the medical doctors who drew up the expert report ordered following the remitting of the case by the Military Prosecutor ’ s Office gave a general account of the probable cause of most of the injuries. However, they did not go into detail as to the manner in which each of the different and, indeed, plentiful, injuries could have been inflicted (see paragraphs 30 and 55 above). 99. The only account of the events that took place in room 36 on the morning of 5 June 1993 is that contained in the statements of the two police officers who were present there, and of Mr D.O., the person detained at the same time as Mr Stefanov. However, their credibility is undermined by several facts. First, the officers had an obvious gain from presenting Mr Stefanov ’ s fall and injuries as an accident or a suicide. Second, it is important to observe that lieutenant I.C. ’ s version of what he had seen changed over time to match the findings of the other investigative actions: the autopsy and the dummy test (see paragraphs 17, 34, 36 and 56 above). Finally, it should also be noted that Mr D.O. was later treated favourably by the police : although suspected of numerous thefts and burglaries, he was released and apparently not prosecuted any further (see paragraph 57 above). It should also be observed that immediately prior to the events he was trying to shift the responsibility for the alleged thefts and burglaries to Mr Stefanov and an argument erupted between the two (see paragraph 15 above). 100. It is unclear whether Mr Stefanov jumped off the window of his own will, or, on the contrary, was intentionally pushed or thrown, or forced in a situation where he had no other option but to jump. It is however highly improbable that he consciously tried to escape, given that the window of room 36 was at 9.6 m. above ground level, that the ground was covered with concrete and iron grills, and that he was handcuffed. There is furthermore no indication of him having any reasons to commit an unprovoked suicide, or that he was in any way intoxicated. While testing confirmed the absence of alcohol in the blood and urine at the time of Mr Stefanov ’ s death and not earlier (see paragraphs 25 and 31 in fine above), it seems highly unlikely, and it has not been claimed by the Government, that he could have consumed alcohol or other intoxicating substances during the night or the morning before his fall, seeing that he was in custody and appeared lucid during questioning. There is furthermore no indication that Mr Stefanov suffered from a mental illness which could lead him to commit suicide or act with disregard for his life or bodily integrity. 101. In view of the foregoing considerations and in particular the inconsistencies in the authorities ’ version of the events leading up to Mr Stefanov ’ s death, the Court finds that the Government have not accounted comprehensively for this death and Mr Stefanov ’ s injuries during his detention in the Kazanluk police station, and that the respondent State ’ s responsibility for his death is engaged. There has therefore been a violation of Article 2 of the Convention in this respect. 2. Alleged inadequacy of the investigation (a) General principles 102. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful. 103. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. 104. 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. 105. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. 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 Anguelova, cited above, §§ 136 ‑ 39, with further references ). 106. 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. 28883/95, § 114, ECHR 2001 ‑ III, with further references ). 107. For the same reason, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities ’ adherence to the rule of law and prevent any appearance of collusion in, or tolerance of, unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests ( ibid., § 115; and Anguelova, cited above, § 140, with further references). (b) Application of those principles to the present case 108. The Court notes that a number of acts of investigation were undertaken in the present case. An autopsy and an on ‑ site inspection were carried out shortly after the events. A number of other acts were also undertaken later, in particular when the case was remitted by the Military Prosecutor ’ s Office (see paragraphs 20, 27 ‑ 31, 34 and 47 ‑ 5 6 above). 109. The Court observes, however, that the authorities questioned only lieutenant I. C. , chief sergeants H.B. and B.B., with the first two having an apparent gain from denying any alleged wrongdoing, and Mr D.O., who might have been under pressure to corroborate the police ’ s version of the events. What is of utmost significance, furthermore, are the inconsistencies between lieutenant I.C. ’ s versions of the events – the one put forward immediately after the incident, and the ones proffered after the autopsy and the dummy test results had been announced (see paragraphs 17, 34, 36 and 56 above). He was never asked to clarify those inconsistencies, which, as already noted (see paragraph 97 above), appear material, given that the conclusions that all of Mr Stefanov ’ s injuries had been sustained solely during his fall, and that the fall had been unprovoked, were to a great extent based on the supposed sequence of the fall. 110. It is also noteworthy that even after the Military Prosecutor ’ s Office ordered the re ‑ questioning of Mr D.O. – the only witness who was not a member of the police force – the latter was not located and re ‑ questioned, and no other information was gathered about the events between Mr Stefanov ’ s arrest on 4 June 1998 and his death in the morning of the next day, 5 June 1993 (see paragraphs 57 and 58 above). 111. Two other notable omissions were the fact that the site of the incident was not preserved in its original state prior to its inspection (see paragraph 20 above) and, as noted above (see paragraph 98 above), the insufficient description of the physical ways through which Mr Stefanov ’ s injuries had been sustained. It is furthermore noteworthy that the authorities eagerly adhered to the theory – made implausible by the dummy test and for this reason reformulated – that all of Mr Stefanov ’ s numerous injuries were sustained exclusively during his fall (see paragraphs 37, 38, 59 and 60 above), and made no effort to explore other hypotheses as to their possible source. 112. It is also striking that, despite their finding that Mr Stefanov had jumped out of the window of his own will (see paragraphs 61 and 64 above), the authorities never investigated why he would commit suicide or choose an apparently deadly escape route. No evidence was collected on his mental state before and during his detention (e.g. psychological reports, questioning Mr D.O. on how Mr Stefanov had felt on 4 and 5 June 1993, etc. ) and on any possible reasons for him to commit such an act, if not prompted by the immediate actions of the police officers present in room 36. 113. In sum, the Court finds that the investigation lacked the requisite objectivity and thoroughness, a fact which undermined its ability to establish the cause of Mr Stefanov ’ s death and injuries. Its effectiveness cannot, therefore, be gauged on the basis of the number of reports made, witnesses questioned or other investigative measures taken. 114. As to the investigation ’ s promptness, the Court observes that while the authorities carried out a certain number of immediate actions, such as an on ‑ site inspection, an autopsy, and blood and urine tests, and took the statement of Mr D.O. shortly after the events, the military investigator started working on the case more than six months later (see paragraph 34 above). It is also noteworthy that lieutenant I.C. was questioned for the first time a year after the events (see paragraph 36 above), and chief sergeants H.B. and B.B. more than three and half years after the events (see paragraphs 50 and 51 above). Finally, it should be noted that the overall length of the investigation was almost five years. During that time the authorities only questioned five or six witnesses, commissioned two medical reports and one autopsy report, and carried out two inspections and a dummy test, with very lengthy periods of inactivity between the various investigative actions. 115. Finally, as regards involvement of the next of kin in the investigation, it is noteworthy that the applicants were not consistently kept abreast of its progress, despite their lawyer ’ s requests for information (see paragraphs 43 and 61 above). 116. On the basis of the above considerations, the Court finds that the investigation in the present case fell foul of the standards set out in the Court ’ s case ‑ law. It follows that there has been a violation of the respondent State ’ s obligation under Article 2 of the Convention to conduct an effective investigation into Mr Stefanov ’ s death. II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 117. The applicants complained that prior to his fall from the window of room 36 Mr Stefanov had been ill ‑ treated and that the authorities had not carried out an effective investigation into this allegation. They relied on Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 118. The applicants submitted that a number of injuries found on Mr Stefanov ’ s body could not be the result of his impact against the ground and were indicative of torture. However, these injuries had never been properly analysed, since the autopsy report and the ensuing medical expert report had merely stated that all injuries had been sustained during the allegedly two-stage fall. The applicants submitted that in view of the lack of a plausible explanation as to the origin of these injuries, the authorities could be considered responsible for their infliction during the Mr Stefanov ’ s detention. 119. Referring to their arguments in respect of the investigation under Article 2, the applicants also argued that there had also been a breach of the obligation of the authorities to conduct an effective investigation into the allegations that Mr Stefanov had been ill ‑ treated. 120. The Government referred to their arguments concerning the alleged violations of Article 2. 121. The Court found above that the Government had not provided a plausible explanation for a number of injuries found on Mr Stefanov ’ s body (see paragraphs 97, 98 and 101 above). 122. Those injuries were indicative of inhuman treatment beyond the threshold of severity under Article 3 of the Convention. 123. There has therefore been a violation of that provision. 124. The Court does not deem it necessary to make a separate finding under Article 3 in respect of the deficiencies in the investigation, having already dealt with that question under Article 2 (see paragraphs 108 ‑ 16 above; and Anguelova, cited above, § 149, with further references ). III. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION 125. The applicants complained that Mr Stefanov ’ s arrest had been unlawful and that the authorities had not investigated this. They relied on Article 5 § 1 (c) of the Convention, which provides: “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 [.] ” 126. The applicants submitted that Mr Stefanov had been arrested and detained without an order to that effect, in breach of domestic law. They further complained that this aspect of the case had not been properly investigated by the authorities. 127. The Government did not comment. 128. The Court notes that, since the investigation did not establish the facts relating to Mr Stefanov ’ s detention and did not gather any documents in this respect (see paragraph 58 above), it is not clear on the basis of which provisions of domestic law (see paragraphs 72 ‑ 74 above), if any, he was taken into custody. Nor have the Government provided any explanations in that regard. 129. The Court ’ s case ‑ law is clear on the point that the absence of data on such matters as the date, time and location of detention, the name of the detainee, as well as the reasons for the detention and the name of the person effecting it must be seen as incompatible with the very purpose of Article 5 (see Anguelova, cited above, § 154, with further references ). Since such information is in most cases by its very nature exclusively within the knowledge of the authorities, it is incumbent on them to point to the factual and legal grounds for the detention of an individual. In the case at hand they did not comment on this issue at any point during the proceedings; nor was any information about Mr Stefanov ’ s detention gathered during the investigation, as the relevant records in the Kazanluk police station had not been preserved (see paragraph 58 above). 130. In these circumstances, the Court concludes that Mr Stefanov ’ s deprivation of liberty was not “ lawful ” within the meaning of Article 5 § 1 (c) of the Convention. There has therefore been a violation of that provision. 131. Having taken into account the authorities ’ inability to establish the circumstances in which Mr Stefanov ’ s was deprived of his liberty and the legal grounds therefor, the Court does not deem it necessary to make a separate finding under Article 5 § 1 in respect of the alleged deficiencies in the investigation. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 132. The applicants complained that they did not have effective remedies in respect of the alleged violations of Articles 2 and 3 of the Convention. They relied on Article 13 thereof, 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.” 133. The applicants repeated their arguments in respect of the complaints under the procedural limbs of Articles 2 and 3. 134. The Government submitted that the decisions of the investigators and the prosecutors in charge of the case could be appealed against before the Military Prosecutor ’ s Office and the Chief Prosecutor ’ s Office. The applicants had availed themselves of this opportunity. One of their appeals had resulted in the remitting of the case for further investigation. 135. 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. Its effect 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 applicants ’ complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law. 136. In cases of suspicious deaths, given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigation procedure (see Anguelova, cited above, § 161, with further references). 137. The Court finds that the applicants had an arguable claim under Articles 2 and 3 in respect of Mr Stefanov ’ s death and ill ‑ treatment and that, for the purposes of Article 13, they should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation. 138. However, in the case at hand, the criminal investigation into the suspicious death was ineffective as it lacked sufficient objectivity and thoroughness (see paragraphs 108 ‑ 16 above). The effectiveness of any other remedy that may have existed was consequently undermined. The Court accordingly finds that the State has failed in its obligation under Article 13 of the Convention. There has therefore been a violation of that Article. V. ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION 139. The applicants complained that the alleged breaches of Articles 2, 3, 5 § 1 and 13 of the Convention had been incited by Mr Stefanov ’ s Roma ethnic origin. They relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 140. The applicants submitted that Mr Stefanov ’ s ill-treatment and death and the ensuing refusal of the prosecution authorities to bring charges against those responsible had been due to his Roma ethnic origin. In their view, this allegation had to be seen against the backdrop of a pattern of police abuse and ill ‑ treatment of Roma in Bulgaria and of the failure of the prosecution authorities to investigate and prosecute racially motivated police violence. In this respect the applicants relied on a number of reports by governmental and non ‑ governmental organisations (see paragraph 76 above). They also referred to the Chamber ’ s judgment in the case of Nachova and Others v. Bulgaria (nos. 43577/98 and 43579/98, 26 February 2004) and submitted that in view of the high incidence of police violence against Roma in Bulgaria, the prosecution authorities should have also investigated that aspect of the case, which they had completely neglected. 141. The Government submitted that the ethnicity of Mr Stefanov had had no incidence on the facts of the case. It was noteworthy in this respect that the other person who had been arrested at the same time, Mr D.O., had made no allegations of ill ‑ treatment; on the contrary, he had corroborated the police officers ’ version of the events. Moreover, there were no direct or indirect indications of racial hatred or bias behind the alleged assault of Mr Stefanov. 142. The investigation into Mr Stefanov ’ s death had been thorough and comprehensive. The authorities ’ findings of fact had been based on the statements of the witnesses, the medical expert reports and the dummy test. Even if the applicants contested the veracity of the statements, the other pieces of evidence remained unrebutted. The military investigation authorities were not obliged to investigate the theoretical aspects of a case where there were no apparent leads to a possible hate crime. The authorities had performed the investigation according to principles they would have applied irrespective of the victim ’ s ethnicity. To hold that they should, in addition, have specifically investigated any racial motives would mean to impose a duty on them to do so every time the alleged victim belonged to a minority group. In the case at hand such a line of inquiry would have been completely unwarranted and would run counter to the principles underlying the Convention and the general public international law. The Government stressed in this connection that the general reports of non ‑ governmental organisations on the discriminatory attitudes against Roma suspected of criminal offences in Bulgaria were irrelevant, as there were no specific facts in the case which could cast doubts in that respect. These reports alone could not provide a sufficient basis for the Court to find the investigation problematic under Article 14, as it had to confine its examination to the specific facts of the case before it. B. The Court ’ s assessment 143. In its recent judgment in the case of Nachova and Others v. Bulgaria the Grand Chamber of the Court examined an almost identical complaint and set out the relevant principles for assessing whether racial prejudice had played a role in a killing by State agents and whether the authorities subsequently discharged their positive obligation to investigate the allegations of racially ‑ motivated violence. 144. In assessing whether respondent State was liable for deprivation of life on the basis of the victims ’ race or ethnic origin, the Court adopted an approach based on the specific circumstances of the case and the overall context. It looked into several factual elements pointed by the applicants (excessive use of firearms and uttering a racial slur by one of the law enforcement officers), and also at the reports of a number of organisations, including intergovernmental bodies, which had expressed concern about the occurrence of violent incidents against Roma in Bulgaria. In the circumstances it found those insufficient to conclude that racist attitudes had played a role in the events leading to the death (see Nachova and Others, cited above, §§ 144 ‑ 59 ). 145. As regards the authorities ’ obligation to investigate the deaths of persons belonging to an ethnic minority, the Court held that when investigating deaths at the hands of State agents, they have the duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice could have played a role in the events. 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 ( ibid., §§ 1 60 and 161 ). In its later analysis of the specific circumstances of the case, the Court placed particular reliance on the racist slur uttered by one of the State agents involved in the events and on the fact that he had used grossly excessive force against two unarmed and non ‑ violent men. It found that these, seen against the background of the many published accounts of the existence in Bulgaria of prejudice and hostility against Roma, called for verification, and concluded that the authorities had before them plausible information which was sufficient to alert them to the need to carry out an initial verification and, depending on the outcome, an investigation into possible racist overtones in the events at issue (ibid., §§ 163 ‑ 66). 146. In the case at hand, unlike the situation obtaining in Nachova and Others, the materials in the case file contain no concrete indication that racist attitudes had played a role in the events of 4 and 5 June 1993. Nor have the applicants pointed to any such facts. 147. It is true that, as noted above, a number of organisations, including intergovernmental bodies, have expressed concern about the occurrence of incidents involving the use of force against Roma by Bulgarian law enforcement officers that had not resulted in the conviction of those responsible (see paragraph 76 above). However, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the death of Mr Stefanov was the result of racism ( ibid., § 155 ), and, failing further information or explanations, must conclude that it has not been established that racist attitudes played a role in events leading to his injuries and death. 148. Concerning the authorities ’ duty to investigate, the Court notes that it has already found that the Bulgarian authorities violated Article 2 in that they failed to conduct a meaningful investigation into the death of Mr Stefanov (see paragraph 116 above). It considers, as in Nachova and Others, that in the present case it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and his death. However, it notes that, unlike the situation obtaining in Nachova and Others (cited above, § 163), in the case at hand the authorities did not have before them any concrete element capable of suggesting that the death of Mr Stefanov was the result of racial prejudice. While the Court does not underestimate the fact that there exist many published accounts of the existence in Bulgaria of prejudice and hostility against Roma (see paragraph 76 above), it does not consider that in the particular circumstances the authorities had before them information which was sufficient to alert them to the need to investigate possible racist overtones in the events that led to the death of Mr Stefanov. 149. It follows that there have been no violations of Article 14 of the Convention taken together with Articles 2, 3, 5 § 1 and 13 thereof. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 150. 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 151. The first applicant claimed 2 0,000 euros (EUR) as compensation for the non ‑ pecuniary damage resulting from the death of Mr Stefanov, whereas the second applicant claimed EUR 10,000. They submitted that the compensation claimed was for pain and suffering, as well as loss of moral and financial support. They relied on a number of judgments in similar cases and summarised the relevant criteria in the Court ’ s case-law. The applicants argued that the events leading to Mr Stefanov ’ s death had gravely upset them, as had the lengthy and ineffective investigation. Finally, the applicants invited the Court to take into account the vulnerability of Mr Stefanov ’ s family, which had lost his support. 152. The Government submitted that the claim was unfounded as there had been no violations of the Convention. The cases to which the applicants referred were inapposite, as they concerned suspicious deaths in custody and inadequate investigations, which was not the case here. There was no indication that physical force had been used against Mr Stefanov, as established by the ensuing investigation, which had been thorough and objective. The Government were of the view that the applicants ’ claim was in fact for pecuniary damages and as such speculative and unproven. Insofar as it could be construed as a claim for non-pecuniary damages, it was excessive. 153. The Court notes from the outset that it has already found violations of Articles 2, 3, 5 § 1 and 13 of the Convention. Therefore, it does not have to re ‑ examine the merits of the case here, as would seem to be the implication of the Government ’ s comments. It further notes that the applicants have not sought compensation for the pecuniary damage resulting from Mr Stefanov ’ s death, as is apparent from the tenor of their claims. It is thus unnecessary to consider the Government ’ s arguments in this respect. 154. As regards claim for compensation for the non-pecuniary damage, the Court considers that the applicants must have suffered gravely as a result of the serious violations, found in the present case, of the most fundamental human rights enshrined in the Convention. The Court notes that the case concerns the death of the first applicant ’ s partner and father of two of her children, and the second applicant ’ s son. Having regard to its judgments in similar cases (see Velikova v. Bulgaria, no. 41488/98, §§ 96 ‑ 98, ECHR 2000 ‑ VI; Anguelova, cited above, § § 170 ‑ 73; and Nachova and Others, cited above, §§ 171 ‑ 72), it awards the amounts claimed in full. B. Costs and expenses 155. The applicants sought the reimbursement of EUR 6,120 for 70 hours of legal work at the rate of EUR 80, and 13 hours of travel of their lawyer, at the hourly rate of EUR 40. They submitted a fees ’ agreements with their lawyer and a time ‑ sheet. 156. The Government were of the view that the amount claimed was excessive if compared to the usual lawyers ’ fees in Bulgaria. 157. The Court considers that the costs and expenses claimed were actually and necessarily incurred and relate to the violations found (see Nachova and Others, cited above § 175). As to the amounts, it considers that the claim appears excessive. Taking into account all relevant factors, it awards jointly to the two applicants EUR 4 ,00 0, plus any tax that may be chargeable, to be paid into their the bank account of their lawyer, Mr Y. Grozev, in Bulgaria. C. Default interest 158. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to life) of the Convention in respect of the applicants’ relative’s death, finding that the Bulgarian Government had not fully accounted for his death and injuries during his detention. It also held that there had been a violation of Article 2 in that the Bulgarian authorities had failed to conduct an effective investigation into the death. The Court further held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment), a violation of Article 5 (right to liberty and security) and a violation of Article 13 (right to an effective remedy) of the Convention. Lastly, noting in particular that the materials in the case file contained no concrete indication that racist attitudes had played a role in the events at issue, the Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention. |
205 | Access to a lawyer | II. RELEVANT DOMESTIC LAW 14. The Russian Constitution provides that an arrested or detained person or a person accused of a criminal offence has a right to legal assistance from the moment of his or her arrest, placement in custody or when charges are brought (Article 48 § 2). 15. The RSFSR Code of Criminal Procedure of 27 October 1960 ( in force up to 1 July 2002, hereafter “the old CCrP ” ) provided that a suspect or an accused was entitled to legal assistance from the moment that charges were brought or, if a suspect was arrested or detained before the bringing of charges, from the moment that the arrest record or the detention order was read out to him (Article 47 § 1 ). The investigator, the prosecutor or the court had to provide the suspect or the accused with legal assistance upon his request (Article 48). 16. In a ruling of 27 June 2000 the Constitutional Court declared Article 47 § 1 of the old CCrP 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 of the old CCrP made the exercise of the right to legal assistance dependent on the discretion of the prosecuting authorities. 17. Article 413 of the 2001 Code of Criminal Procedure (hereafter “the CCrP ” ) provides that criminal proceedings may be reopened if the European Court of Human Rights has found a violation of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 18. The applicant complained that the criminal proceedings against him had been unfair. In particular, he complained that he had been denied access to legal assistance during the first few days of his police custody and that the confession he had made during that period had been used for his conviction. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows: “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.” A. Admissibility 19. The Government submitted that the Court did not have jurisdiction ratione temporis to examine the complaint about the absence of legal assistance during the first days of the police custody. The applicant ’ s complaint concerned the period from 2 to 8 May 1997, while the Russian Federation ratified the Convention on 5 May 1998. 20. The applicant submitted that both the first - instance and the appeal judgments that determined the merits of his criminal case had been taken after 5 May 1998. Therefore, the Court had competence ratione temporis in respect of his legal - assistance complaint. 21. The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party (“the critical date”). While it is true that from the critical date onwards all of the State ’ s acts and omissions must conform to the Convention, the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to that date. Thus, in order to establish the Court ’ s temporal jurisdiction it is essential to identify, in each specific case, the exact time of the alleged interference. In doing so, the Court must take into account both the facts of which the applicant complains and the scope of the Convention right alleged to have been violated (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § § 128-30, 21 October 2013, with further references). 22. Turning to the facts of the present case, the Court notes that the applicant was denied legal assistance from 2 to 8 May 1997. That period falls outside the Court ’ s temporal competence in respect of Russia. However, the thrust of the applicant ’ s complaint is that the confession statement given during that period was used for his conviction. Both the first - instance judgment of 15 January 2001 and the appeal judgment of 18 October 2006 which determined the merits of the applicant ’ s criminal case were taken after the entry into force of the Convention in respect of Russia on 5 May 1998. Both judgments relied on the applicant ’ s confession statement of 2 May 1997. The Court reiterates in that connection that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of the isolated consideration of one particular aspect or one particular incident (see, among other authorities, Moiseyev v. Russia, no. 62936/00, § 201, 9 October 2008 ). It follows that the Court is competent to check whether the proceedings as a whole complied with the Convention (see, for similar reasoning, Klimentyev v. Russia ( dec. ), no. 46503/99, 21 June 2005). 23. In view of the above, the Court rejects the Government ’ s preliminary objection relating to the Court ’ s competence ratione temporis to deal with the merits of the applicants ’ complaint about the absence of legal assistance during the first days of the police custody. 24. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 25. The Government submitted that at the material time the national law had provided for legal assistance from the moment that the arrest record or the detention order was read out to the suspect. Given that the applicant had confessed before his arrest record had been read out to him, he had not been entitled to legal assistance. He had, however, been informed beforehand of his right not to incriminate himself but had not made use of that right. The domestic courts had found that the confession statement had been obtained in accordance with the procedure prescribed by law and that no pressure had been put on the applicant. Moreover, the domestic courts had also relied on witness statements, expert reports and other evidence. The confession statement had not therefore been the sole evidence against the applicant. 26. The applicant submitted that the legal provision guaranteeing legal assistance from the moment the arrest record has been read out had been declared unconstitutional by the Constitutional Court. Despite the fact that the confession statement had been obtained in accordance with an unconstitutional provision, the domestic courts had used it for his conviction. That confession statement obtained without the benefit of legal advice had moreover been the decisive evidence against him as the witnesses and the other pieces of evidence had not implicated him directly. The applicant also alleged that there had been many other procedural defects in the criminal proceedings against him. He submitted, in particular, that the trial judge had been biased, that one of the hearings had been held in his absence and that the evidence had been assessed incorrectly. 27. The Court reiterates that, although not absolute, the right under Article 6 § 3 (c) of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 ‑ A ). 28. As regards legal assistance at the pre-trial stages of the proceedings, the Court has held that the particular vulnerability of the accused at the initial stages of police questioning can only be properly compensated for by the assistance of a lawyer, whose task is, among other things, to help to ensure respect for the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. Accordingly, in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first questioning 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 that right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will, in principle, be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, §§ 50-55, ECHR 2008, and Panovits v. Cyprus, no. 4268/04, §§ 64-66 and 83, 11 December 2008). 29. In the present case the applicant ’ s right of access to a lawyer was restricted during the first hours of the police custody under Article 47 § 1 of the old CCrP, in force at the material time, which provided that a suspect was entitled to legal assistance from the moment that the arrest record or the detention order was read out to him (see paragraph 15 above). Given that the applicant was questioned before his arrest record was read out to him, his request for legal assistance was denied. As a result, he did not have the benefit of legal advice when he made his confession statement to the police. 30. The Court notes that no compelling reasons to restrict the applicant ’ s right of access to a lawyer were cited by the Government. The restriction was therefore the direct result of the application of Article 47 § 1 of the old CCrP. The Court has previously found that 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 Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009 ). Moreover, the Court does not lose sight of the fact that that provision was subsequently declared unconstitutional by the Russian Constitutional Court (see paragraph 16 above). 31. The Court further notes that the applicant was undoubtedly affected by the restrictions of his access to a lawyer in that his statement to the police was used for his conviction. Indeed, the confession statement made by the applicant without the benefit of legal advice served as the sole basis for the finding of guilt both in the first - instance and the appeal judgments (see paragraphs 12 and 13 above). The Court therefore finds that, irrespective of whether the applicant had the opportunity to challenge the evidence against him before the courts, the absence of a lawyer while he was in police custody irretrievably affected his defence rights (see Salduz, cited above, §§ 58 and 62; Panovits, cited above, §§ 75-77 and 84-86; and Pavlenko v. Russia, no. 42371/02, § 119, 1 April 2010 ). 32. The Court concludes from the above findings that the use of his confession statement made without the benefit of legal advice for the applicant ’ s conviction undermined the fairness of the proceedings as a whole. 33. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. 34. In view of the above findings, there is no need to examine separately the remaining allegations made by the applicant in relation to the fairness of the trial. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35. Lastly, the Court has examined the other complaints submitted by the applicant, and, having regard to all the material in its possession and in so far as they 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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 36. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 37. The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage. 38. The Government submitted that the applicant had claimed compensation for non-pecuniary damage incurred as a result of his criminal prosecution and conviction. However, they noted that it was not the Court ’ s task to assess the reasonableness of the charges against him and therefore considered that the applicant ’ s claim should be dismissed. 39. The Court reiterates that when an applicant has been convicted despite a potential infringement of his rights guaranteed by Article 6 of the Convention he should, as far as possible, be put in the position in which he would have been 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 requested (see Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005 ‑ IV, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010). The Court notes, in that connection, that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention (see paragraph 17 above). 40. As to the applicant ’ s claims in respect of non-pecuniary damage, the Court considers that the applicant ’ s sufferings and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards him EUR 4 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 41. Relying on receipts and invoices, the applicant also claimed 13,620 Russian roubles (about EUR 373) for legal fees and travel expenses incurred in the domestic proceedings. 42. The Government submitted that the claim was unsubstantiated. 43. 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 373 for costs and expenses, plus any tax that may be chargeable to the applicant. C. Default interest 44. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 §§ 1 and 3 of the Convention, finding that the use of his confession statement made without the benefit of legal advice for the applicant’s conviction undermined the fairness of the proceedings as a whole. |
505 | Unavailability of widows’ allowances to widowers | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Income and Corporation Taxes Act 1988 (“the 1988 Act”) 21. Widow ’ s bereavement allowance (“WBA”) was governed by section 262(1) of the Income and Corporation Taxes Act 1988, which provided: “Where a married man whose wife is living with him dies, his widow shall be entitled – (a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year, and (b) (unless she marries again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year.” A widow had six years from the end of the tax year in which her husband died to claim the allowance. 22. WBA was introduced by the Finance Act 1980, at a time when married couples were taxed as a single entity, with the man receiving an allowance in respect of his wife ’ s earnings (the married man ’ s allowance: “MMA”). When a married man was widowed, he could continue to claim MMA in the year of his wife ’ s death. The aim of WBA was to enable widowed women to claim the equivalent of the MMA in the year of bereavement, rather than being restricted to a single person ’ s allowance (“SPA”). 23. Independent taxation of married men and women was introduced from 1990/91. Thereafter each married partner was entitled to claim a personal allowance, although the husband retained the right to claim a married couples allowance (“MCA”), which was the difference between the old MMA and the SPA. 24. With effect from 1993/94 a married woman became entitled (subject to certain conditions) for the first time to share the MCA with her husband, or the couple together could elect that the wife could set the full amount of the MCA against her income. From 1994 the Government began successively to reduce the value of WBA and MCA, so that the WBA was worth a maximum of GBP 285 in 1998/99 and GBP 197 in 1999/2000. 25. Section 34 of the Finance Act 1999 abolished WBA in relation to deaths occurring on or after 6 April 2000. B. The House of Lords ’ judgment in Wilkinson 26. The question whether a claimant who had been refused widow ’ s bereavement allowance after 2 October 2000 on the basis of his male sex could have the decision overturned under the Human Rights Act 1998 (“the Act”) was examined by the House of Lords in R. v. Her Majesty ’ s Commissioners of Inland Revenue ex parte Wilkinson [200 5 ] UKHL 30. The IR accepted that the WBA fell within the scope of Article 1 of Protocol No. 1, did not attempt to justify the difference in treatment between male and female bereaved spouses and admitted that the refusal of allowances to widowers was a breach of their Convention rights. However, the IR argued—and the House of Lords accepted—that it had not been unlawful under the Act for the IR to refuse to grant the WBA to men because it would have been contrary to primary legislation so to do (section 6(2)(b) of the Act ). 27. Lord Hoffmann, with whom the other Law Lords agreed, went on to consider the hypothetical question of what damages Mr Wilkinson could have recovered if his claim had not been barred by section 6(2)(b) of the Act. Since the purpose of an award of damages under the Act was to allow claimants to recover in an English court what they would have recovered in Strasbourg, Lord Hoffmann discussed the Court ’ s approach to just satisfaction in discrimination cases (§§ 26-28) : A general principle applied to affording just satisfaction is to put the applicant so far as possible in the position in which he would have been if the State had complied with its obligations under the Act. In a discrimination case, in which the wrongful act is treating A better than B, this involves forming a view about whether the State should have complied by treating A worse or B better. Normally one would conclude that A ’ s treatment represented the norm and that B should have been treated better. In some cases, however, it will be clear that A ’ s treatment was an unjustifiable anomaly. Such a case is Van Raalte v Netherlands ..., in which the Court found a breach of Article 14 read with Article 1 of the First Protocol because the law exempted unmarried childless women over 45 from paying contributions under the General Child Benefits Act without exempting unmarried childless men. The exemption for women was abolished in 1989 but judgment was not given until 1997. The court rejected a claim for repayment of the contributions from which the applicant would have been exempt if he had been a woman. In my opinion the reason for the rejection of this claim is that if the State had complied with its Convention obligations, it would done what it did in 1989 and not exempted either men or women. It follows that the applicant would have been no better off. He would still have had to pay. In the circumstances, the judgment itself was treated as being sufficient just satisfaction. The same is true in this case. There was no justification whatever for extending the widows ’ allowance to men. If, therefore, Parliament had paid proper regard to Article 14, it would have abolished the allowance for widows. Mr Wilkinson would not have received an allowance and no damages are therefore necessary to put him in the position in which he would have been if there had been compliance with his Convention rights”. 28. Lord Brown of Eaton-under-Heywood dealt with the two contrasting cases of Van Raalte and Darby v Sweden and continued (§§ 47 – 53) : “... In any claim against a public authority for financial compensation in respect of past discrimination it must be remembered that the general public (often the general body of taxpayers) will be footing the bill. In determining the requirements of just satisfaction, just as in the application of the Convention as a whole, regard should be had not only to the victim ’ s rights but also to the interests of the public generally. Take a case where A establishes discrimination on the basis that he should have been placed in the same class as B, both of them advantaged financially over class C. To compensate A for his past financial disadvantage vis à vis B would be costly for C (the non-benefiting class of taxpayers)—disproportionately so if class A is large, classes B and C comparatively small. Whether this would be fair to C would depend upon the justification for advantaging A and B over C in the first place and indeed for doing so to the extent that B was originally advantaged over A and C. It might well be fairer overall to leave A uncompensated in respect of the past discrimination against him. At the very least, bearing in mind that class A are taxpayers too, fairness to C might require that class A ’ s compensation be reduced to reflect the fact that they too would have had to pay more tax to fund their own additional benefits. Just these considerations, indeed, may yet arise in the parallel case of Hooper were a claim for just satisfaction now to be advanced in Strasbourg. Moreover, by the same token that it will not invariably be right to compensate the complainant even where there is a case for preferential treatment of one class and A falls into it, it will not invariably be inappropriate to compensate the complainant even though there was no case for anyone to be treated preferentially in the first place. Take, for example, the case of a public body unjustifiably paying its male employees more than women doing the same job. It could not then reasonably be argued that the men ’ s excess wages represented an unjustified windfall which should not properly be paid to the women also. Such an argument, indeed, would almost certainly fail even if the employer proved that, had all employees been paid the same, this would have been at the women ’ s (lower) rate—a plausible case if, say, the women employees substantially outnumbered the men. This example, I may say, formed the bedrock of Miss Rose ’ s argument in respect of just satisfaction in the present appeal. What, then, distinguishes the employee case from Van Raalte itself? The critical feature of the Van Raalte case which to my mind distinguishes it from the employee case is that the complainant in Van Raalte was in essentially the same position as all other contributors to the scheme (save only for the wrongly exempted group). Realistically the discrimination was no more against him than against the others: there was simply no case for exempting anyone. It would thus have been most unfair to the general body of contributors (category C) to have required them to subsidise not merely the exempted class of women but also the equivalent men. That, however, is not the position in employment cases. In the postulated employment case the discrimination can clearly be seen to have been against the less well-paid women. If the men doing the same work were thought to be worth the higher wage, so too were the women. There can be nothing unfair in making the employer compensate the women in respect of the past discrimination against them (although, of course, in the case of a public authority, the compensation will indirectly fall to be paid by the general public). Into which category, then, does the present appeal fall? Is the situation here akin to that in Van Raalte or to the employment type of case? To my mind there can be only one answer to this question: the position here is just as it was in Van Raalte. The Court of Appeal rightly characterised the widows bereavement allowance as ‘ an anachronistic relic of a tax regime abandoned by 1994 ’ and rightly concluded that the discrimination ‘ provided widows with an unjustified advantage not merely over widower taxpayers but over all taxpayers. ’ In a case like this, therefore, the past discrimination suffered by widowers is less (and less deserving of compensation) than would be the discrimination suffered by the general body of taxpayers were they now required to fund this unjustified benefit not only for qualifying widows but for widowers too. Even though, as the House was told, the issue of just satisfaction only arose at the reconvened hearing before the Court of Appeal and at the prompting of the Court itself, in my judgment it provides an ample basis for declining now to pay out to this appellant.” C. Social security benefits for widows before 9 April 2001 29. Under the Social Security and Benefits Act 1992 (“the 1992 Act”) “widows ’ benefits” ( Widow ’ s Payment, Widowed Mother ’ s Allowance and Widow ’ s Pension ) were paid for out of the National Insurance Fund. By Section 1 of the 1992 Act, the funds required for paying such benefits were to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament. Male and female earners were obliged to pay the same social security contributions in accordance with their status as employed earners or self-employed earners. The eligibility criteria for each benefit were as follows: 1. Widow ’ s Payment 30. Under Section 36 of the 1992 Act, a woman who had been widowed after 11 April 1988 was entitled to a widow ’ s payment if: ( i ) she was under pensionable age (60) at the time when her husband died, or he was not then entitled to a Category A retirement pension; (ii) her husband satisfied certain specified social security contribution conditions set out in a Schedule to the 1992 Act. 31. The benefit was not payable to a widow if she and a man to whom she was not married were living together as husband and wife at the time of her husband ’ s death. 32. According to section 19(6) of the Social Security (Claims and Payments) Regulations 1987 (and see also section 1(2)(a) of the Social Security Administration Act 1992), a widow had to claim the Payment within twelve months of her husband ’ s death. As from April 1997 the time-limit was reduced to three months ( Social Security (Miscellaneous Amendments No.2) Regulations 1997 ). 2. Widowed Mother ’ s Allowance 33. Under Section 37 of the 1992 Act, a woman who had been widowed was entitled to a Widowed Mother ’ s Allowance if her husband had paid the required National Insurance contributions and she was either pregnant by her late husband or entitled to child benefit in respect of a child of the marriage. Child benefit is available in respect of a child for any week in which he or she is under the age of 16, or under 19 and studying full-time up to A- level or equivalent, or aged 16 or 17 and registered for work or training (section 142 of the 1992 Act). 34. 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. 35. According to section 19(6) of the Social Security (Claims and Payments) Regulations 1987 (and see section 1 (2)(b) of the Social Security Administration Act 1992), a widow had to make a claim to receive the benefit, which could be backdated 12 months from the date of claim. As from April 1997, the benefit could be backdated only three months from the date of claim (Social Security (Miscellaneous Amendments No.2) Regulations 1997). 3. Widow ’ s Pension 36. Under Section 38 of the 1992 Act, a woman who had been widowed was entitled to a Widow ’ s Pension 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 Widowed Mother ’ s Allowance 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. 37. 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 Widowed Mother ’ s Allowance. D. The Welfare Reform and Pensions Act 1999 38. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) came into force on 9 April 2001. Section 54 of this Act 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. 39. Section 55 of the 1999 Act 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. 40. Section 55 also introduced a Bereavement Allowance for widows and widowers over the age of 45 but under pensionable age at the spouse ’ s death, where no dependant 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. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 A. Tax Allowance 41. The applicants complained that the United Kingdom authorities ’ refusal to grant them WBA or equivalent constituted discrimination on grounds of sex contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. 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 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.” 1. The Government ’ s preliminary objection concerning Mr Geen 42. The Government were concerned that there might have been a factual misunderstanding of Mr Geen ’ s application at the admissibility stage and they invited the Court to reconsider the issue. They argued that Mr Geen ’ s oral enquiry about WBA in December 1995/January 1996 would not have constituted a valid domestic application for the allowance, and Mr Geen could not therefore claim to be a victim of discrimination on that basis. In any event, his application had been introduced on 29 September 2000, more than six months after any refusal of WBA in 1995 or 1996. His application to the Court pre-dated and made no mention of the refusal of WBA on 3 October 2000. There was no factual basis for the complaint about refusal of bereavement allowance, and this complaint should therefore be ruled inadmissible. 43. Mr Geen pointed out that his case had already been declared admissible by the Court on 8 April 2003. However, if the Court was minded to revisit its decision, he argued that he had become a victim simply by making an application for WBA, which he knew would be refused. 44. The Court recalls that Article 35 § 4 of the Convention enables it to dismiss an application it considers inadmissible “at any stage of the proceedings”. Thus, even at the merits stage the Court may re-consider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Blečić v. Croatia [GC], no. 5953 2 /00, § 65, ECHR 2006). 45. In previous decisions concerning claims by widowers about the United Kingdom ’ s social security and taxation systems, the Court has made the following findings concerning the application of the rules on admissibility (see, for example, McGillen and Others v. the United Kingdom (dec), nos. 77129/01, 27996/02, 28067/02, 26083/03, 4 April 2006): (1) Since under the 1992 Act and subordinate legislation, a widow was not automatically entitled to survivors ’ benefits and had to claim them from the relevant authority, unless or until a man has made a claim to the domestic authorities for bereavement benefits, he cannot be regarded as a “victim” of the alleged discrimination involved in the refusal to pay such benefits, because a woman in the same position would not automatically be entitled to widow ’ s benefits until having made a claim. However, as long as an applicant has made clear to the authorities his intention to claim benefits, the precise form in which he has done so is not important. (2) Similarly, a widower who did not apply within the age- and time-limits as they applied to women cannot claim to be a victim of discrimination, because a woman in his position would also have been refused the benefits or allowance in question. (3) The refusal of widow ’ s benefits to men is not a “continuing violation or situation”, since a widower cannot claim to be a victim of discrimination until he has applied for benefits and been refused. It has, therefore, been the Court ’ s consistent practice in such cases to hold that the six months time-limit in Article 35 § 1 of the Convention begins to run from the date of the final refusal by the domestic authorities of such benefits. 46. Applying these principles in the present case, the Court notes that the applicant appears to have requested and been refused WBA in December 1995/January 1996 and again in July 1996. His complaint about these refusals, however, was not introduced until his amended application form was lodged on 15 March 2001, and should therefore have been declared inadmissible under the six months rule. Although he appears to have applied formally for WBA on 29 September 2000, the same day that he submitted his application to the Court, he made no mention of this request and the IR ’ s refusal of 3 October 2000 until 28 November 2002. In its decision of 8 April 2003, however, although the Government raised an issue under the six months rule, the Court declared the application admissible without reference to the fact that the applicant ’ s complaints about the refusals of WBA had been introduced some time after his first application form was lodged. 47. The six-month rule serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible and it is not open to the Court to set the rule aside (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I). 48. In the present case Mr Geen ’ s complaints about the refusals of WBA were introduced outside the six months time-limit in Article 35 § 1. The Court cannot, therefore, take cognisance of their merits. 2 The merits 49. The Government accepted that WBA fell within the ambit of Article 1 of Protocol No. 1 and that Article 14 was, accordingly, engaged. They did not seek to argue that the continued availability of the allowance to widowed women only between 1994 and 2000 could be justified, but denied that this had been to the detriment of widowed men in particular. WBA had originally been introduced to compensate for the unfairness which would arise from the fact that, if a husband died early in a tax year, his widow would be entitled only to a single person ’ s allowance, whereas a widowed husband would continue to receive the higher married man ’ s allowance in the year of his wife ’ s death (see paragraphs 21-25 above). After the introduction of the new regime of independent taxation in 1990-91, the allowance became an anachronism and ceased to be objectively justified and a small group of taxpayers—widows—received an unjustified advantage over the wider population of taxpayers. 50. The applicants Mr Richard and Mr Walsh submitted that the Government had no defence to their complaint of discrimination. In the domestic proceedings (see paragraphs 26-28 above) the IR had accepted that the WBA fell within the scope of Article 1 of Protocol No. 1 and did not offer any justification for its availability to widowed women but not men. 51. The Court agrees with the parties that the tax allowance in question fell within the scope of Article 1 of Protocol No. 1 and that Article 14 is thus engaged (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 43, ECHR 2005). 52. The applicants complain of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14. 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 (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006; Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV). 53. WBA was introduced at a time when married couples were taxed as a single entity, with a tax allowance available to the man in respect of his wife ’ s earnings. A widowed man could continue to claim this married man ’ s allowance in the year following the wife ’ s death, whereas a widowed woman received only a single person ’ s allowance. WBA was intended to rectify this inequality, but became obsolete when independent taxation of married men and women was introduced from 1990/91 and spouses were given the choice, from 1993/94, as to how to share the married couples allowance (see paragraphs 21-25 above). The Government have not attempted to justify the availability of the WBA to female widows only from 1990/91 until its abolition in respect of deaths occurring after 6 April 2000. The Court does not consider that, during the period when the applicants were denied the allowance, the difference in treatment between men and women as regards the WBA was reasonably and objectively justified. 54. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 as regards Mr Hobbs, Mr Richard and Mr Walsh. B. Other benefits 55. Mr Walsh, Mr Geen and Mr Richard complained in addition about the non-payment to them of Widow ’ s Pension and, initially, about the non-payment of Widow ’ s Payment and Widowed Mothers ’ Allowance (see paragraphs 29-37 above). 56. The Court notes that parties have reached a friendly settlement as regards the claims for Widow ’ s Payment and Widowed Mother ’ s Allowance (see paragraph 5 above). It does not consider that respect for human rights as defined in the Convention and protocols requires it to continue with its examination of these complaints (see Article 37 of the Convention). It therefore strikes out these parts of the applications. 57. As for the claims regarding Widow ’ s Pension, it is recalled that a woman who had been widowed was entitled to this benefit if she was at the date of her husband ’ s death over the age of 45 but under the age of 65 or if she ceased to be entitled to a Widowed Mother ’ s Allowance when she was over the age of 45 but under the age of 65. All three applicants were under the age of 45 when their wives died. Mr Richard and Mr Walsh ’ s children are still young enough to give rise to entitlement to Widowed Mother ’ s Allowance, so these two applicants would not currently qualify for Widow ’ s Pension even if they had been women. Although they might, possibly, become eligible at some time in the future, their claims for Widow ’ s Pension are hypothetical and cannot give rise to any violation of the Convention ( see Willis, § 49 and also, for example, Dodds and others v. United Kingdom (dec.), no. 59314/00, 8 April 2003). 58. Mr Geen ’ s children are now 17 and 19 years of age, and it is possible that a woman in his position would have ceased to be entitled to Widowed Mother ’ s Allowance and become entitled to a Widow ’ s Pension. However, the parties to the present case have not submitted full observations concerning the non-availability to men of Widow ’ s Pension, which will be considered by the Court in the lead cases on that issue, Runkee v. the United Kingdom (no. 42949/98) and White v. the United Kingdom (no. 53134/99). In these circumstances, the Court decides to reserve its consideration of Mr Geen ’ s claim for Widow ’ s Pension. 59. In conclusion, therefore, the Court strikes out the applicants ’ claims as regards Widow ’ s Payment and Widowed Mother ’ s Allowance. It finds no violation in respect of Mr Richard ’ s and Mr Walsh ’ s claims for Widow ’ s Pension, and adjourns its consideration of Mr Geen ’ s claim for Widow ’ s Pension. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. 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 61. The applicants, Mr Richard and Mr Walsh, argued that they were entitled to compensation for the discriminatory refusal to grant them WBA, in the amount that they would have received had they been widows, plus interest. They cited in their support three cases where the Court had awarded compensation for the wrongful levying of taxes or refusal of a tax allowance ( S.A. Dangeville v. France, no. 36677/97, ECHR 2002-III; Darby v. Sweden, judgment of 23 October 1990, Series A no. 187; P.M. v. the United Kingdom, no. 6638/03, 19 July 2005) and also the case of Willis, cited above. They submitted that the Court ’ s approach in these cases complied with the principle of restitutio in integrum and also encouraged compliance with the Convention, since there would be less incentive for States to avoid discrimination if they were not required to pay compensation. 62. Such an approach was in their view also consistent with the case-law of the European Court of Justice (“ ECJ ”), which had on a number of occasions addressed the remedy for unlawful discrimination and concluded that it should be by way of “levelling up”—that is, treating the complainant in the same way as the favoured group—rather than “levelling down”—giving no compensation on the basis that neither class should have received the benefit. In Kowalska v. Frie und Hansestadt Hamburg [1990] ECR I-2591 the ECJ had held: “ ... where there is indirect discrimination in a clause in a collective wage agreement, the class of persons placed at a disadvantage by reason of that discrimination must be treated in the same way and made subject to the same scheme, proportionately to the number of hours worked, as other workers, such scheme remaining, for want of correct transposition of Article 119 of the EEC Treaty into national law, the only valid point of reference ... ” (and see also Nimz v. Frie und Hansestadt Hamburg [1991] ECR I-297; Johnson v. Chief Adjudication Officer [1991] ECR I-3723; Remi van Cant v. Rijksdienst voor pensionen [1993] ECR I-3811; Smith v. Avdel Systems [1994] ECR I-4435). 63. In the applicants ’ submission, this approach by the ECJ accorded strongly with the important policy of deterring discrimination. On Lord Hoffmann ’ s analysis in Wilkinson (see paragraph 2 7 above) it was open to a discriminator to avoid any meaningful sanction; indeed, the more arbitrary and unjustifiable the benefit provided to the favoured class, the more likely the discriminator was to succeed. Furthermore, the ECJ approach avoided the need for undesirable speculation as to what the legislature—or employer—would have decided if it had not decided to introduce discrimination. Lord Hoffmann ’ s conclusion was not based on any evidence as to what Parliament would have done, but upon his own opinion as to the merits of WBA and what the best course would have been. It should not be open to judges to re-write history in this way. It was notable that in Wilkinson neither the IR Commissioners nor Lord Hoffmann were able to cite any authority from the extensive corpus of domestic and EC discrimination law in favour of the proposition that no remedy should be awarded. Lord Hoffmann could rely only on a single Court judgment, Van Raalte v. Netherlands, but this was, in the applicants ’ submission, a far from satisfactory authority, since there was no explanation as to why damages were not awarded or why the Court was departing from the approach it had adopted less than three years before, in Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B. 64. The Government submitted that just satisfaction under Article 41 of the Convention depended in every case on an assessment of what remedy was appropriate in the particular circumstances. It was not intended to be a sanction on the State, but was instead designed to be compensatory. 65. Where, as with WBA, the Government had already removed the discriminatory anomaly, the Court should take account of the wider public interest. It was common ground that WBA was an anachronistic relic of a tax regime abandoned by 1994. It was true that WBA discriminated in favour of widows, but it did so in comparison to all other taxpayers, not just widowed men. The principle of just satisfaction did not require that an anomaly should be further extended. The taxpayer should not be required to subsidise, through an award of pecuniary damages, men who happened to have been widowed during the relevant period, in addition to the widows who had already received the allowance. 66. The Court ’ s approach in Van Raalte v. the Netherlands and that of the House of Lords in Wilkinson was in the view of the Government correct in principle and should be followed. The European Court of Justice (“ECJ”) cases relied on by the applicants were not relevant, and the context in which questions of compensation for discriminatory treatment arose before the ECJ was quite different, as was the impact of a decision to “level up”. In the present cases, the advantage provided to widowed women did not provide the only, or even an appropriate, reference point for measuring the treatment which should properly be afforded to widowed men, who were in the same position as all other tax-payers. Darby v. Sweden and P.M. v. the United Kingdom were not comparable to the present cases since each had concerned a discriminatory failure to extend to the applicant a justifiable tax relief or exemption. 67. The Court recalls 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 found by the Court not occurred ( Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). As shown by the judgment in Van Raalte (cited above), it does not inevitably follow from a finding of a violation of Article 14 that an award of just satisfaction must be made to reflect any pecuniary damage allegedly suffered as a result of the differential treatment. Whether such an award is made will depend on all the circumstances of the case, including the field in which the discriminatory treatment arose; whether the applicant belongs to a similarly affected class of persons; the size of any such class; the nature of the legislative provision, if any, giving rise to the discriminatory treatment; and, where such discrimination has been eliminated as the result of an amendment of the relevant provisions, the nature of, and reasons underlying, the amendment. 68. The present case concerns the differential treatment of bereaved men and women in the years from 1994 to 1999 in respect of the grant of tax allowances under the 1988 Act. The applicants, as widowers, belonged to a large class of persons who were similarly denied the allowances granted to widows during that period. The allowances were, as noted above, originally introduced in 1980, when married couples were taxed as a single entity, to enable widows to claim the equivalent of the married man ’ s allowance in the year of bereavement and thus to equate their position with that of widowers. However, when the independent taxation of married men and women was introduced, the underlying purpose of the WBA ceased to exist and the allowance was removed in the 1999 Act as being an anomalous feature of a tax regime abandoned in 1994, which had unduly favoured widows, not only over widowers, but also over other taxpayers. 69. In these circumstances, the Court, like the House of Lords in the Wilkinson case (see paragraphs 26-28 above ), finds no reason to remedy the inequality of treatment by “levelling up” and awarding the value of tax benefits which had been found to be unjustified. It accordingly makes no award by way of just satisfaction in respect of the pecuniary loss alleged to have been suffered. B. Non-pecuniary damage 70. Mr Hobbs claimed GBP 4,000 for anguish and loss of sleep caused by the discrimination over a period of years, and Mr Walsh and Mr Richard each claimed GBP 2,000 for distress and frustration. 71. The Government submitted that it would not be appropriate to award compensation for non-pecuniary damage in this case. 72. The Court notes that the applicants have produced no evidence to substantiate their claims. It does not accept that they were caused real and serious emotional damage as a result of being denied a tax allowance of the relatively low value of the WBA (see paragraph 21 above). No award can accordingly be made under this head. C. Costs and expenses 73. Mr Hobbs, who was not represented, claimed costs of GBP 1,040, calculated on the basis of GBP 20 per letter and GBP 20 per hour labour and overheads. Mr Richard and Mr Walsh applicants each claimed GBP 660.74 in respect of the costs and expenses of their claims relating to WBA, inclusive of value added tax (“VAT”). 74. The Government did not accept that Mr Hobbs ’ costs and expenses had genuinely been incurred. Although they considered that the other two applicants ’ costs were high, they did not object to the sums being awarded in full. 75. The Court is not satisfied that Mr Hobbs ’ legal costs were actually incurred, and thus makes no award to him under this head (see, for example, Steel and Morris v. the United Kingdom, no. 68416/01, § 194, ECHR 2005). It notes that the Government does not contest the represented applicants ’ claims for costs, and thus awards Mr Richard and Mr Walsh EUR 800 each, together with any tax that may be payable. D. Default interest 76. 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. | Concerning the applicants’ first complaint, the Court did not consider that, during the period when the applicants were denied the allowance, the difference in treatment between men and women as regards the Widow’s Bereavement Tax Allowance was reasonably and objectively justified. It therefore held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 1 (protection of property) of Protocol No. 1 in respect of the first, second and third applicants. The Court further noted that parties had reached a friendly settlement as regards the claims for Widow’s Payment and Widowed Mother’s Allowance and struck those parts of the applications out of its list. Lastly, the Court found no violation in respect of the applicants’ claims for Widow’s Pension in respect of the second and third applicants, and adjourned its consideration of the claim for Widow’s Pension in the case of the fourth applicant. |
85 | Parental authority, child custody and access rights | RELEVANT LEGAL FRAMEWORK AND PRACTICE Russian Family Code 51. Article 54 of the Russian Family Code (“the Code”) provides that every child, that is a person under the age of eighteen, has the right to live and be brought up in a family, in so far as this is possible. He or she has the right to know his or her parents, to be cared for, and to live with his or her parents, except where this is contrary to his or her interests. A child also has the right to be brought up by his or her parents, to the protection of his or her interests, to full development, and to respect for his or her human dignity. 52. Article 69 of the Code establishes that a parent may be deprived of parental authority if he or she avoids parental duties, such as the obligation to pay child maintenance; refuses to collect his or her child from a maternity hospital, or any other medical, educational, social or similar institution; abuses his or her parental authority; mistreats his or her child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse. 53. By virtue of Article 71 of the Code, parents who have been deprived of their parental authority lose all rights based on their kinship with the child in respect of whom their parental authority has been withdrawn, as well as the right to receive child welfare benefits and allowances paid by the State. 54. Article 73 provides that a court may decide, in the interests of the child, to remove him or her from his or her parents (or one of them) without depriving them of their parental authority (restriction of parental authority). Parental authority is restricted when leaving the child with his or her parents (or one of them) is deemed dangerous for the child due to circumstances beyond the control of the parents (or one of them), such as mental illness or other chronic disease, or a combination of difficult circumstances. It is also possible to restrict parental authority in cases where leaving a child with his or her parents (or one of them) would be dangerous for the child on account of their behaviour, but sufficient grounds for depriving the parents (or one of them) of their parental authority have not been established. If the parents (or one of them) do not change their behaviour, the custody and guardianship authority is under an obligation to apply for the parents to be deprived of their parental authority within six months of the court decision restricting parental authority. Acting in the interests of the child, the authority may lodge the application before that deadline. Supreme Court of Russia 55. In its ruling no. 10 on courts ’ application of legislation when resolving disputes concerning the upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular: “... 11. Only in the event of their guilty conduct may parents be deprived of their parental authority by a court on the grounds established in Article 69 of the [Russian Family Code]. Avoidance by parents of their parental duties in relation to their children ’ s upbringing may manifest itself in [such parents ’ ] failure to take care of [the children ’ s] moral and physical development, education, [and] preparation for socially useful activities. ... Chronic alcohol or drug abuse should be confirmed by a relevant medical report ... 12. ... Persons who do not fulfil their parental obligations as a result of a combination of adverse circumstances or on other grounds beyond their control (for instance, [where the person has] a psychiatric or other chronic disease ...) cannot be deprived of their parental authority. ... 13. Courts should keep in mind that deprivation of parental authority is a measure of last resort. Exceptionally, where a parent ’ s guilty conduct has been proved, a court, with due regard to [that parent ’ s] conduct, personality and other specific circumstances, may reject an action for [him or her] to be deprived of his or her parental authority and urge [him or her] to alter [his or her] attitude towards bringing up [his or her] children, entrusting [a competent] custody and guardianship agency with monitoring whether [that parent] duly performs [his or her] parental duties.” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 56. The applicant complained that that she had been deprived of her parental authority as a result of the automatic application of Article 69 of the Russian Family Code, in which a parent ’ s drug addiction was listed among the grounds for removal of parental authority. She relied on Article 8 of the Convention, the relevant part of which reads: “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.” Admissibility 57. The Government pointed out that the Russian Code of Civil Procedure, as in force at the relevant time, had established a two-tier cassation appeal procedure for appealing against court decisions taken at the first two levels of jurisdiction, which had been recognised by the Court as an effective remedy in the case of Abramyan and Others v. Russia (( dec. ), nos. 38951/13 and 59611/13, 12 May 2015). They further pointed out that at the time the applicant had lodged her application with the Court, her cassation appeal had still been pending before a cassation court. They argued therefore that the application was premature and that the applicant had failed to exhaust the effective domestic remedies available to her. 58. With reference to the case of Kocherov and Sergeyeva (no. 16899/13, 29 March 2016), the applicant argued that when she had lodged her application with the Court, she had not known that it would consider the new cassation procedure an effective remedy. She pointed out that she had lodged her application on 14 October 2014, whereas the Court ’ s inadmissibility decision in the case of Abramyan and Others (cited above) had not been delivered until May 2015. 59. The Court has rejected similar objections by the respondent Government in many cases where applicants had lodged their applications before the Court had pronounced its decision in the case of Abramyan and Others, cited above (see, for example, Novruk and Others v. Russia, nos. 31039/11 and 4 others, §§ 70-76, 15 March 2016; Kocherov and Sergeyeva, cited above, §§ 64-69; McIlwrath v. Russia, no. 60393/13, §§ 85-95, 18 July 2017; Elita Magomadova v. Russia, no. 77546/14, §§ 40 ‑ 44, 10 April 2018; Khusnutdinov and X v. Russia, no. 76598/12, §§ 65-66, 18 December 2018; and Zelikha Magomadova v. Russia, no. 58724/14, §§ 79-80, 8 October 2019 ). 60. The Court does not discern any reason to reach a different conclusion in the present case. The applicant lodged her application with the Court on 14 October 2014, that is before the Court recognised the reformed two-tier cassation appeal procedure as an effective remedy (see Abramyan and Others, cited above, §§ 76-96). Moreover, the Government have not alleged that at the time of the events under consideration, any relevant domestic case-law had existed to enable the applicant to realise that the new remedy met the requirements of Article 35 § 1 of the Convention, and to anticipate the new exhaustion requirement rather than following the approach that had been applied by the Court until very recently. In such circumstances, the Court considers that the applicant was not required to pursue that procedure prior to lodging her application with the Court. 61. Accordingly, the Court rejects the Government ’ s objection as to the alleged non-exhaustion of domestic remedies. 62. 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. MeritsSubmissions by the parties Submissions by the parties Submissions by the parties (a) The applicant 63. The applicant argued that the domestic courts had automatically applied Article 69 of the Russian Family Code on the sole ground that she had been a drug addict; they had not assessed the necessity and proportionality of a measure as harsh as deprivation of parental authority. In particular, they had not considered applying other, less restrictive, measures. In the applicant ’ s submission, withdrawal of parental authority should be a measure of last resort that was to be applied only where other, less intrusive, measures had failed. Indeed, Article 73 of the Russian Family Code (see paragraph 54 above) provided for restriction of parental authority, which was less drastic; however, the domestic authorities had never considered applying that measure. 64. Furthermore, the national authorities had never considered rendering social assistance and support to the applicant and her family. In particular, once the applicant ’ s situation had become known to the Russian authorities, they had held her liable in administrative proceedings for not fulfilling her parental duties. They did not offer any social or medical support to the applicant and her family, despite the obvious fact that her hardship and difficult family situation had been caused by her drug dependence. The assessments undertaken by the child-protection authority (see paragraphs 7 and 9 above) had been focused on depriving her of parental authority, rather than identifying her family ’ s needs and providing her with the necessary social support. 65. The domestic courts had also failed to strike a fair balance between the interests at stake, and to provide “relevant and sufficient” reasons for their decision to deprive the applicant of parental authority. In particular, they had disregarded the positive changes in her conduct after the removal of her children and, more specifically, the fact that she had started rehabilitation treatment. Moreover, they had not considered the option of leaving the children in the care of their maternal grandmother. Instead, having disregarded the evidence and witness statements proving that before the children ’ s removal, the applicant and her children had enjoyed decent living conditions, and that her mother had been living with them and had helped her to take care of them, they authorised the children ’ s placement in public care. Nor did the authorities take into account the fact that the children had bonds not only with the applicant but with her mother as well. The courts had also disregarded statements by the applicant ’ s mother and her elder son that she had not been taking drugs in front of the children. In fact, the courts had attributed the risk to the children ’ s health and development to the mere fact that the applicant had been taking drugs, and that drugs had been present and sold in her flat. Moreover, the courts had referred to her poor financial situation, which, in itself, was not a valid reason for withdrawing her parental authority. 66. The applicant concluded that the way in which the authorities had exercised their powers and dealt with her situation had been punitive rather than supportive. 67. She had been put in a position where she had been unable effectively to put forward all arguments against the withdrawal of her parental authority. In particular, the domestic courts had rejected as irrelevant the evidence she had submitted, including positive references from her neighbours and her son ’ s school, as well as the evidence confirming that she had commenced rehabilitation treatment. 68. The applicant also argued that in the domestic proceedings, despite the fact that she had been vulnerable in view of her drug addiction, she had not been provided with free legal aid. She had not had the benefit of legal counsel and had been represented by someone without legal education and skills, whereas the authorities had been represented by a number of officials from the child-protection authorities, who “probably [had] had legal education and skills or knowledge related to childcare cases”, as well as by a prosecutor. This had put the applicant at a disadvantage. 69. Moreover, the last hearing before the first-instance court had been held despite the fact that the applicant could not attend it as she had been in a specialist clinic for rehabilitation treatment. Overall, the proceedings had been heavily dominated by public officials, with the result that the decision-making process could not be considered to have been fair. 70. The applicant stressed that as a consequence of the decision to deprive her of parental authority, she had lost all rights in respect of her children, including contact rights. The impugned measure had therefore violated her right to respect for her private and family life. (b) The Government 71. The Government acknowledged that depriving the applicant of her parental authority had constituted an interference with her right to respect for her family life secured by Article 8 § 1 of the Convention. In their view, however, it had been justified under the second paragraph of that Article. It had a basis in domestic law, as it had been based on the Russian Family Code, in particular Article 69, on which the domestic courts had relied in their relevant decisions. It had also pursued the aim of protecting the children ’ s rights. 72. In the Government ’ s view, the measure complained of had also been “necessary in a democratic society”; it had been proportionate and had taken the children ’ s best interests into account. Under the Court ’ s well-established case-law, the national courts had a certain margin of appreciation in the field and were better placed to assess the relevance and substance of the evidence before them, including witnesses ’ statements. In the proceedings concerning withdrawal of the applicant ’ s parental authority, the domestic courts had rightly considered that maintaining family ties between the applicant and her three children would be detrimental to their health and development, and that it would be in the best interests of the children to ensure their development in a safe environment. The courts had taken their decision on the basis of the adduced evidence. In particular, the first-instance court had established that the applicant had been taking drugs for a prolonged period of time, which had damaged the children ’ s mental health; she had let her acquaintances take drugs in her flat, where her children lived; she had neglected her children and, in particular, had not taken care of their health and mental development; she had been unemployed and had a low income; and criminal proceedings had been pending against her. The Government also referred to the applicant ’ s previous criminal record without providing any supporting documents. In the Government ’ s view, the foregoing proved that the withdrawal of the applicant ’ s parental authority had not been automatic but had been based on relevant and sufficient considerations. 73. As regards the decision-making process, the Government contended that the applicant had taken part in two hearings (on 5 and 24 December 2013) before the first-instance court, where she and her representative had had an opportunity to make oral and written submissions and to lodge applications which had been examined by the courts and had received reasoned replies. As regards the last hearing on 17 January 2014, which the applicant had been unable to attend because of her hospitalisation on that date, the Government pointed out, firstly, that she had been aware of the date of the hearing and yet she had chosen to start her inpatient treatment on that date. Moreover, her representative had asked the first-instance court to postpone the hearing for two months, which, in the court ’ s view, had been too long for a childcare dispute. In any event, the applicant had stated her case and advanced her arguments during the previous two hearings, and her representative had participated in the third hearing. In addition, the applicant and her representative had attended the hearing at which her case had been examined by the appellate court. Therefore, in the Government ’ s view, the decision-making process had been fair and had secured the applicant ’ s rights. 74. The Government further argued that the authorities had taken the most appropriate steps in the circumstances. In particular, the applicant ’ s elder son had been transferred into his father ’ s care, which according to a report drawn up by his school, had had a beneficial effect on his behaviour. The two youngest children had been transferred to a foster family; their foster parents had complied with all the requirements of the relevant law. The Court ’ s assessment (a) General principles 75. 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, for instance, Haddad v. Spain, no. 16572/17, § 51, 18 June 2019). 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). A child ’ s interests dictate that the child ’ s ties with his or her family must be maintained, except in cases where the family has proved to be particularly unfit and this may harm the child ’ s health and development (see, for instance, K.B. and Others v. Croatia, no. 36216/13, § 143, 14 March 2017). Severing such ties means cutting a child off from his roots, which may only be done in very exceptional circumstances everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. In that context, the Court has emphasised, in particular, the State ’ s obligation to adopt measures to preserve the parent-child bond as far as possible (see Görgülü v. Germany, no. 74969/01, § 48, 26 February 2004; S.H. v. Italy, no. 52557/14, § 48, 13 October 2015; and Kacper Nowakowski v. Poland, no. 32407/13, § 75, 10 January 2017). 76. At the same time, it is clearly also in the child ’ s interest to ensure his or her 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 Strand Lobben and Others v. Norway [GC], no. 37283/13, § 207, 10 September 2019). The child ’ s best interests may, depending on their nature and seriousness, override those of the parents (see, for instance, V.D. and Others v. Russia, no. 72931/10, § 114, 9 April 2019). 77. It must be borne in mind that generally the national authorities have the benefit of direct contact with all the persons concerned. It is accordingly not the Court ’ s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their power of appreciation (see, among other authorities, X v. Latvia [GC], cited above, § 101, and Strand Lobben and Others, cited above, § 210). The margin of appreciation to be granted to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Whilst the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody matters, stricter scrutiny is called in respect of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of 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 family relations between parents and a child are effectively curtailed (see Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I; Haase v. Germany, no. 11057/02, § 92, ECHR 2004-III (extracts), and Strand Lobben and Others, cited above, § 211). 78. In assessing whether the impugned measure was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons given to justify the impugned measure were “relevant and sufficient” for the purposes of Article 8 § 2 of the Convention. To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, in particular factors 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 child (see Neulinger and Shuruk, cited above, § 139). In cases relating to public-care measures, the Court will also have to determine whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of her interests safeguarded by Article 8 (see Strand Lobben and Others, cited above, § 212). (b) Application of these principles to the present case 79. The Court notes firstly that, by its very nature, the tie between the applicant and her children comes within the notion of “family life” for the purposes of Article 8 of the Convention (see A.K. and L. v. Croatia, no. 37956/11, §§ 51-52, 8 January 2013, and S.S. v. Slovenia, no. 40938/16, § 78, 30 October 2018). 80. It was not in dispute between the parties that depriving the applicant of her parental authority in respect of her children had constituted an interference with her right to respect for family life as guaranteed by Article 8 § 1 of the Convention. Such interference constitutes a violation of that provision unless it is “in accordance with the law”, pursues one of the legitimate aims under Article 8 § 2 and can be regarded as necessary in democratic society (see, among other authorities, Jovanovic v. Sweden, no. 10592/12, § 74, 22 October 2015, and S.S. v. Slovenia, cited above, § 79). 81. The Court further accepts the Government ’ s argument that the measure complained of was based on Article 69 of the Russian Family Code (see paragraph 52 above), and that it pursued the aim of protecting the rights of the applicant ’ s children. It remains to be determined whether that measure was “necessary in a democratic society”. 82. The Court observes at the outset that depriving the applicant of her parental authority cancelled the mother-child bond between the applicant and her children, and extinguished all parental rights she had in respect of them, including the right to have contact with them (see paragraphs 53 and 70 above). The Court reaffirms that splitting up a family is a very serious interference (see A.K. and L. v. Croatia, § 62, and Haddad, § 54, all cited above). Depriving a person of his or her parental rights is a particularly far-reaching measure which deprives a parent of his or her family life with the child, and it is inconsistent with the aim of reuniting them. As noted above, such measures should only be applied in exceptional circumstances, and can only be justified if they are motivated by an overriding requirement pertaining to the child ’ s best interests (see Strand Lobben and Others, cited above, § 209; M.D. and Others v. Malta, no. 64791/10, § 76, 17 July 2012; and N.P. v. the Republic of Moldova, no. 58455/13, § 65, 6 October 2015). This is accordingly a domain in which there is an even greater call than usual for protection against arbitrary interferences (see S.S. v. Slovenia, cited above, § 96). 83. In respect of the decision-making process, the Court observes that the applicant was represented throughout the proceedings in question; she also attended in person two out of three hearings before the first-instance court and the appellate court ’ s hearing and made oral submissions (see paragraphs 27 and 43 above). A number of witnesses, including her mother and her elder son, were heard (see paragraphs 28 and 31 above). At the same time, in assessing the quality of the decision-making process leading to the splitting up the family, the Court will also have to see whether the conclusions of the domestic authorities were based on adequate evidence (see N.P. v. the Republic of Moldova, cited above, § 69; compare also Strand Lobben and Others, cited above, §§ 220 and 225). 84. In the above connection, the Court notes that the domestic courts based the impugned measure on the findings that she had been neglecting her parental responsibilities by failing to provide her children with adequate care and financial support, and, for a prolonged period of time, she had been taking drugs and had been unemployed. The authorities considered that leaving children in her care would thus put their health and development at risk, and decided that her parental authority should be withdrawn (see paragraphs 39 and 45 above). The Court is prepared to accept that those were “relevant” considerations, but is not convinced that they were also “sufficient” to justify the impugned measure in the circumstances of the present case. 85. On the facts, the applicant ’ s three children were removed from her and placed in public institutions on 8 October 2013, when the criminal proceedings against her on suspicion of her involvement in drug trafficking had commenced (see paragraphs 5 and 7 above). The Court is prepared to accept that the children ’ s removal and initial placement in public care was justified, given in particular that the applicant had been intoxicated on the date in question, had suffered from withdrawal symptoms on the following days, and had clearly been unable to take care of her children (see paragraphs 8 and 19 above). It does not follow, however, that that fact, in itself, constituted sufficient grounds for such a far-reaching measure as deprivation of parental authority. The Court reiterates that a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see Strand Lobben and Others, § 208, and Haddad, § 54, all cited above). 86. The Court further observes that the childcare authorities started monitoring the applicant ’ s family in connection with her allegedly negligent performance of her parental duties and lack of care for her children on an unspecified date in October 2013 – presumably after the events of 8 October 2013 – and that they instituted proceedings to deprive the applicant of her parental authority as early as 1 November 2013 (see paragraph 26 above). It does not appear that, prior to the proceedings in question, the applicant had been monitored by the childcare or any other social welfare authorities, or warned about her behaviour and the consequences it might entail. Nor does it appear that, once the applicant ’ s situation had come to their attention, the competent authorities made any attempt to provide her with appropriate assistance. There is also no evidence that, in their relevant decisions, the domestic courts considered any of those factors. 87. The Court reaffirms that the authorities ’ role in the social welfare field is, precisely, to help persons in difficulty, to provide them with guidance in their contact with the welfare authorities and to advise them, inter alia, on how to overcome their difficulties (see Saviny v. Ukraine, no. 39948/06, § 57, 18 December 2008; R.M.S. v. Spain, no. 28775/12, § 86, 18 June 2013; and S.H. v. Italy, cited above, § 54). In the case of vulnerable persons, the authorities must show particular vigilance and afford increased protection (see, for instance, S.S. v Slovenia, cited above, § 84). 88. Furthermore, whilst holding that the applicant had neglected her parental obligations and, in particular, had not provided her children with adequate care, the domestic courts did not elaborate on those findings. In particular, they failed to refer to any particular situations or events where the applicant had left her children unattended, had not provided care for them or had neglected them in any way, let alone endangered their health or life by her actions or inaction. They merely relied on the applicant ’ s own statement – made in the context of the criminal proceedings against her – that she had allowed her acquaintances to use her flat for taking drugs (see paragraph 6 above), and the oral evidence of Ms I.P., a police officer for juvenile affairs, who stated that the applicant would allow her acquaintances to take drugs in her kitchen, in her children ’ s presence (see paragraph 30 above). 89. In the above connection, the Court notes, firstly, that it does not follow from the applicant ’ s statement that she or her acquaintances had ever taken drugs in front of her children. It is unclear what the basis for Ms I.P. ’ s relevant statement was, as this latter question was not explored in any detail by the domestic courts. Secondly, the applicant, her elder son and her mother consistently stated that the applicant had not demonstrated her addiction to her family members; in particular, there had been no “inadequacies” in her everyday behaviour (see paragraphs 27, 28 and 31 above). Although those statements seemingly contradicted those of Ms I.P., in so far as the latter mentioned that drugs had been taken in the presence of the applicant ’ s children, the domestic courts made no attempt to obtain more information in order to clarify that important contradiction. 90. It is also relevant that the applicant consistently reaffirmed her intention to resolve her drug-addiction problem and, moreover, took steps to that end (see paragraphs 19 - 25, 27, 43 and 49 above). Yet, there is no indication that the domestic authorities sought any independent evidence, such as an assessment by a psychologist, to evaluate the applicant ’ s emotional maturity and motivation to act as a responsible parent and to resolve her drug-addiction problem. Moreover, the applicant ’ s arguments and evidence that she had commenced rehabilitation treatment were rejected by the first-instance court as irrelevant (see paragraph 40 above), and by the appellate court with reference to the fact that it had been received after the first-instance court ’ s judgment (see paragraph 43 above). The Court finds this line of reasoning striking in a situation where the applicant ’ s drug addiction appears to have been the main, if not the only, ground for depriving her of parental authority. The domestic courts in fact chose to ignore the evidence adduced by the applicant, instead of assessing it during the proceedings (compare N.P. v. the Republic of Moldova, cited above, § 75). 91. In so far as the domestic courts relied on the fact that the applicant was unemployed, the Court finds that financial difficulties cannot in themselves be regarded as sufficient grounds for cancelling a parent-child bond, in the absence of any other valid reasons (compare Kocherov and Sergeyeva, cited above, § 119). Moreover, the relevant court decisions did not explain how the applicant ’ s being unemployed affected her ability and capacity to take care of her children. In fact, the report of 11 October 2013, relied on by the domestic courts, does not reveal any defects in the living conditions of the applicant ’ s family, except for the fact that the room in which she and her children lived was stuffy, untidy and poorly ventilated. Otherwise, that report indicates that the children had separate sleeping places and that there were sufficient food supplies in the kitchen and in the refrigerator (see paragraph 19 above). Moreover, the report of 18 November 2013 clearly showed subsequent improvements, stating, in particular, that the flat was tidy, cosy and well ventilated and that recent repairs had been carried out in the kitchen (see paragraph 20 above). However, no assessment of those changes, in particular whether they could be regarded as a genuine attempt on the part of the applicant to improve her situation after the children ’ s removal, was made by the domestic courts. 92. The Court further notes the applicant ’ s argument that under the relevant provisions of domestic law, the authorities had discretion to apply a less drastic measure and to order restriction rather than deprivation of her parental authority (see paragraphs 54 and 63 above). The Court finds it surprising that the domestic authorities did not consider that alternative, despite the fact that, as noted in paragraph 86 above, the applicant did not have a history of neglecting her children. Nor did they give the applicant any warnings regarding the possible consequences of her allegedly negligent behaviour in respect of her children. 93. It is also relevant that the applicant consistently expressed her attachment to the children and her wish to maintain her relationship with them. Written and oral evidence was adduced to the domestic courts showing that prior to the children ’ s removal, the applicant had taken care of them (see paragraphs 28, 31 and 36 above), and that after their removal she had expressed an interest in their lives and made an effort to maintain contact with them (see paragraph 29 above). It was also shown that the children were deeply attached to their mother and their maternal grandmother (see paragraphs 16 and 29 above), and that the maternal grandmother had been willing to keep the children in her care (see paragraph 20 above). Yet, it does not appear that the domestic courts gave due consideration to any of those aspects. In particular, when choosing the measure to be applied in the applicant ’ s case, they did not assess the impact which the children ’ s separation from their mother and grandmother might have on their well-being. That is particularly striking in view of the fact that the removal of the applicant ’ s parental authority terminated her parental status and thus deprived her of any legal grounds to apply for contact orders or seek access to her children. 94. The Court furthermore observes that, as a result of the impugned measure, the children were not only separated from the applicant, their mother, but they themselves were split up, given that the oldest child was transferred into his father ’ s care whereas two youngest children were placed in public care (see Kutzner, cited above, § 77; Pontes v. Portugal, no. 19554/09, § 98, 10 April 2012; and S.H. v. Italy, cited above, § 56). 95. In the light of the foregoing, the Court finds that the reasons relied on by the domestic courts were insufficient to justify depriving the applicant of her parental authority over her three children, and placing the youngest two children in public care. The domestic authorities failed to demonstrate convincingly that, despite the availability of less radical solutions, the impugned measure constituted the most appropriate option corresponding to the children ’ s best interests. Notwithstanding the domestic authorities ’ margin of appreciation, the interference with the applicant ’ s family life was therefore not proportionate to the legitimate aim pursued. 96. There has accordingly been a violation of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 98. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 99. The Government argued that the claim was excessive and unreasonable, and did not correspond to the Court ’ s case-law. They argued that no compensation should be awarded to the applicant, as her rights had not been violated. 100. The Court notes that it has found a violation of the applicant ’ s right to respect for her family life on account of the deprivation of her parental authority. It considers that she has suffered non-pecuniary damage in that connection, which cannot be compensated for by a mere finding of a violation. Having regard to the particular circumstances of the case, the Court considers it appropriate to award the applicant the full amount, that is EUR 20,000, in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. Costs and expenses 101. The applicant did not submit any claim for the costs and expenses incurred, either at the domestic level or before the Court. 102. The Court thus makes no award under this head. Default interest 103. 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 the Russian authorities had failed to show that removing the applicant’s parental authority had been the most appropriate option in the children’s best interests and that the measure had therefore been disproportionate The Court found in particular that the national courts had not sufficiently justified taking such a drastic measure, even though there were less radical solutions available under domestic law. Nor had they taken into consideration that the applicant had no history of neglecting her children, had started rehabilitation and had not apparently been given any warnings about or support for her drug problems. |
731 | Industrial pollution | II. RELEVANT DOMESTIC LAW 60. Section 6 of the Environment Act ( Law no. 349/1986 ), which was enacted in accordance with European Directive 85/337/EEC, provides that any project which is likely to have significant effects on the environment “ must be submitted, prior to its approval, to the Ministry of the Environment, the Ministry of Cultural and Environmental Heritage and the authorities of the region concerned for an environmental-impact assessment ( ‘ EIA ’ ). The application must state the location of the installation and give details of the liquid and solid waste and the pollutants and noise disturbance which it will generate. It must also outline the measures intended to prevent environmental damage and the environmental- protection and monitoring arrangements. Notice of the application shall be published at the applicant ’ s expense in the newspaper with the largest circulation in the region concerned and in a national newspaper. The Ministry of the Environment shall, together with the Ministry of Cultural and Environmental Heritage, after consulting the authorities of the region concerned, give a decision within ninety days as to the project ’ s compatibility with environmental regulations. Where the Ministry of the Environment observes any conduct that is contrary to the decision on compatibility with environmental regulations or is likely to endanger the environmental and ecological balance, it shall order the suspension of operations and shall refer the matter to the Council of Ministers. ” 61. Article 1 of Prime Ministerial Decree no. 377/1988 lists the types of project that are subject to the assessment procedure provided for in Law no. 349/1986. Point (f) of the Article refers to “facilities for the treatment of toxic and harmful waste by means of a ... chemical process”. 62. Law no. 441/1987, amended by Legislative Decree no. 22/1997, contains provisions on waste treatment and environmental protection. Article 27 of the Decree governs the licensing of waste-treatment facilities. The regional council conducts a preliminary examination of proposed new facilities for the treatment and storage of urban, special, toxic and harmful waste by means of consultations ( conferenze ) in which representatives of the region and the other local authorities concerned take part. If the planned facility examined by the regional council has to undergo a prior environmental-impact assessment within the meaning of Law no. 349/ 1986, the licensing procedure is suspended pending the decision of the Ministry of the Environment. 63. Once the examination of the project is complete, the regional council awards an operating licence for the facility in an administrative decision laying down the necessary environmental-protection conditions and requirements for the operator to observe. The licence is valid for five years and is renewable. Where it emerges from inspections of the site that the conditions laid down by the authorities are not being met, the operation of the facility is suspended for up to twelve months. Subsequently, if the facility ’ s operations have not been brought into line with the requirements set out in the licence, the licence is revoked (Article 28 of Decree no. 22 / 1997). 64. By section 21 of Law no. 1034/1971, anyone who has cause to fear that his or her rights may suffer imminent and irreparable damage as a result of the implementation of an administrative measure which he or she has challenged or of the authorities ’ conduct may ask the administrative courts to take urgent action to ensure, depending on the circumstances, that the decision on the merits can provisionally take effect. THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 65. The Government submitted that the application was premature in that the latest proceedings instituted by the applicant were still pending in the Regional Administrative Court. Asserting that an application to the administrative courts for judicial review was an effective and accessible remedy, the Government submitted that the applicant should be required to await the outcome of those proceedings. 66. The applicant disputed the Government ’ s reasoning. She submitted that since 1994 she had asked the administrative courts on several occasions to halt the plant ’ s operation. However, although her requests for stays of execution had been granted and the environmental- impact assessment concerning the plant had been negative, its activities had never been stopped. 67. The Court observes that in its decision of 15 March 2005 on the admissibility of the application, it held that the Government ’ s objection that the application was premature should be joined to the examination of the merits of the case. Having regard to the substance of the applicant ’ s complaint, it can only confirm that conclusion. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 68. The applicant complained that the persistent noise and harmful emissions from the plant, which was only 30 metres away from her house, entailed severe disturbance to her environment and a permanent risk to her health and home, in breach of Article 8 of the Convention, which provides: Article 8 “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties ’ submissions 1. The applicant 69. The applicant submitted that the plant operated by Ecoservizi had considerably expanded since being opened in 1982, having spread to barely 30 metres from the house in which she had already been living for several years before that date, and having reached an annual production capacity of some 200,000 cubic metres of harmful waste. 70. Since 1991 in particular, the plant ’ s operations had increasingly been characterised by the continuous emission of noise and odours, preventing the applicant from being able to rest and live in adequate conditions, and had entailed a constant danger to the health and well-being of all those living in the vicinity. The applicant submitted that such a state of affairs was wholly incompatible with her right to respect for her private life and home and her right to health, and contended that the measures taken by the company were not sufficient to eliminate the disturbance produced by the plant and the risk resulting from its operation. 71. The applicant further submitted that the environmental-impact assessment procedure, which according to the law should have been an essential prerequisite for the plant ’ s operation, had not been initiated until several years after Ecoservizi had begun its activities. Furthermore, the company and the authorities had never complied with the decrees in which the plant ’ s operation had been deemed incompatible with environmental regulations, and had disregarded the instructions issued by the Ministry of the Environment. The treatment of toxic and harmful waste could not be said to be in the public interest in such conditions. 2. The Government 72. The Government did not dispute that there had been interference with the applicant ’ s right to respect for her home and private life. They contended, however, that the interference had been justified under the second paragraph of Article 8 of the Convention. The Government asserted that the administrative decisions in which Ecoservizi had been granted operating licences had been taken in accordance with the law and had pursued the aims of protecting public health and preserving the region ’ s economic well-being. The company, they pointed out, processed almost all of the region ’ s industrial waste, thereby ensuring the development of the region ’ s industry and protecting the community ’ s health. 73. In the Government ’ s submission, the instant case differed from that in Guerra and Others v. Italy (19 February 1998, § 57, Reports of Judgments and Decisions 1998-I ) for two reasons. Firstly, Ecoservizi ’ s operations respected the fundamental right to public health, and secondly, it had not been proved that the facility in the instant case was dangerous, whereas in Guerra and Others it had not been disputed that the emissions from the chemical factory entailed risks for the inhabitants of the town of Manfredonia. The Government also pointed out the difference between the instant case and that in López Ostra v. Spain (9 December 1994, Series A no. 303- C), in which the operation of the waste-treatment plant had not been indispensable to the local community. Emphasising the public-interest value of Ecoservizi ’ s activities, they observed that regard had to be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole, and that there was a clear body of case-law in which the Court had allowed States a wide margin of appreciation in environmental matters. 74. The Government also drew the Court ’ s attention to the latest decisions by the domestic authorities. They pointed out, firstly, that on 23 July 2004 the Lombardy Regional Administrative Court, after considering all the relevant evidence in the case, had dismissed an application by the applicant for a stay of execution of the most recent decision to grant Ecoservizi an operating licence. They further noted that the most recent EIA procedure had ended on 28 April 2004 with a positive assessment by the Ministry of the Environment. This proved that the relevant authorities had assessed the plant ’ s operations as a whole and, while ordering the company to comply with certain requirements, had found that they were compatible with environmental regulations and did not entail a danger to human health. 75. The Government further pointed out that Ecoservizi, a company that was very familiar to the public, not least because of the judicial proceedings and complaints brought by Ms Giacomelli, had frequently undergone inspections by the relevant authorities, so that any risk to the applicant ’ s health could be ruled out. The applicant, whose sole purpose was to secure the closure or relocation of the plant, had simply alleged a violation of her right to health, without taking into account the efforts made by the appropriate authorities to improve the situation and without giving details or proof of any adverse effects on her health. B. The Court ’ s assessment 76. Article 8 of the Convention protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII). 77. Thus in Powell and Rayner v. the United Kingdom ( 21 February 1990, § 40, Series A no. 172), the Court declared Article 8 applicable because “ [ i ] n each case, albeit to greatly differing degrees, the quality of the applicant ’ s private life and the scope for enjoying the amenities of his home ha[d] been adversely affected by the noise generated by aircraft using Heathrow Airport ”. In López Ostra (cited above, § 51), which concerned the pollution caused by the noise and odours generated by a waste-treatment plant, the Court stated that “severe environmental pollution may affect individuals ’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. In Guerra and Others (cited above, § 57), the Court observed: “The direct effect of the toxic emissions on the applicants ’ right to respect for their private and family life means that Article 8 is applicable.” Lastly, in Surugiu v. Romania (no. 48995/99, 20 April 2004), which concerned various acts of harassment by third parties who entered the applicant ’ s yard and dumped several cartloads of manure in front of the door and under the windows of the house, the Court found that the acts constituted repeated interference with the applicant ’ s right to respect for his home and that Article 8 of the Convention was applicable. 78. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure to regulate private-sector activities properly. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants ’ rights under paragraph 1 of Article 8 or in terms of an interference by a public authority to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance (see Powell and Rayner, § 41, and López Ostra, § 51, both cited above). 79. The Court considers that in a case such as the present one, which involves government decisions affecting environmental issues, there are two aspects to the examination which it may carry out. Firstly, it may assess the substantive merits of the government ’ s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual (see Taşkın and Others v. Turkey, no. 46117/99, § 115, ECHR 2004-X ). 80. In relation to the substantive aspect, the Court has held on a number of occasions that in cases involving environmental issues the State must be allowed a wide margin of appreciation (see Hatton and Others, cited above, § 100; Buckley v. the United Kingdom, 25 September 1996, §§ 74-77, Reports 1996-IV; and Taşkın and Others, cited above, § 116). It is for the national authorities to make the initial assessment of the “necessity” for an interference. They are in principle better placed than an international court to assess the requirements relating to the treatment of industrial waste in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community. 81. To justify the award of the operating licence for the plant to Ecoservizi and the subsequent decisions to renew it, the Government referred to the economic interests of the region and the country as a whole and the need to protect citizens ’ health. 82. However, the Court must ensure that the interests of the community are balanced against the individual ’ s right to respect for his or her home and private life. It reiterates that it has consistently held that, although Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and must afford due respect to the interests safeguarded to the individual by Article 8 (see, mutatis mutandis, McMichael v. the United Kingdom, 24 February 1995, § 87, Series A no. 307-B). It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process, and the procedural safeguards available (see Hatton and Others, cited above, § 104). However, this does not mean that the authorities can take decisions only if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. 83. A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals ’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting interests at stake (see Hatton and Others, cited above, § 128). The importance of public access to the conclusions of such studies and to information enabling members of the public to assess the danger to which they are exposed is beyond question (see, mutatis mutandis, Guerra and Others, cited above, § 60, and McGinley and Egan v. the United Kingdom, 9 June 1998, § 97, Reports 1998-III). Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process (see, mutatis mutandis, Hatton and Others, cited above, § 128, and Taşkın and Others, cited above, §§ 118- 19). 84. In determining the scope of the margin of appreciation allowed to the respondent State, the Court must therefore examine whether due weight was given to the applicant ’ s interests and whether sufficient procedural safeguards were available to her. 85. The Lombardy Regional Council first granted Ecoservizi an operating licence for the plant in question in 1982. The facility was initially designed for the storage and treatment of hazardous and non-hazardous waste. In 1989 the company was authorised to treat harmful and toxic waste by means of “detoxification”, a process involving the use of chemicals potentially entailing significant risks to the environment and human health. Subsequently, in 1991, authorisation was given for an increase in the quantity of waste being treated at the plant, and the facility was consequently adapted to meet the new production requirements until it reached its current size. 86. The Court notes at the outset that neither the decision to grant Ecoservizi an operating licence for the plant nor the decision to authorise it to treat industrial waste by means of detoxification was preceded by an appropriate investigation or study conducted in accordance with the statutory provisions applicable in such matters. 87. The Court observes that section 6 of Law no. 349/1986 provides that the Ministry of the Environment must carry out a prior environmental-impact assessment ( “ EIA ” ) for any facility whose operation might have an adverse effect on the environment; among such facilities are those designed for the treatment of toxic and harmful waste using chemicals (see paragraphs 60 and 61 above). 88. However, it should be noted that Ecoservizi was not asked to undertake such a study until 1996, seven years after commencing its activities involving the detoxification of industrial waste. 89. The Court further notes that during the EIA procedure, which was not concluded until a final opinion was given on 28 April 2004 (see paragraph 50 above), the Ministry of the Environment found on two occasions, in decrees of 24 May 2000 and 30 April 2001 (see paragraphs 38 and 41 above), that the plant ’ s operation was incompatible with environmental regulations on account of its unsuitable geographical location, and that there was a specific risk to the health of the local residents. 90. As to whether the applicant had the opportunity to apply to the judicial authorities and to submit comments, the Court observes that between 1994 and 2004 she lodged five applications with the Regional Administrative Court for judicial review of decisions by the Regional Council authorising the company ’ s activities; three sets of judicial proceedings ensued, the last of which is still pending. In accordance with domestic law, she also had the opportunity to request the suspension of the plant ’ s activities by applying for a stay of execution of the decisions in issue. 91. The first set of proceedings instituted by the applicant ended in 1998 when the administrative courts dismissed her complaints, finding among other things that she had failed to challenge the decisions in which the Regional Council had authorised an increase in Ecoservizi ’ s volume of activity ( see paragraph 20 above ). 92. However, in the second set of contentious proceedings the Lombardy Regional Administrative Court and the Consiglio di Stato, in decisions of 29 April 2003 and 25 May 2004 respectively, held that the plant ’ s operation had no legal basis and should therefore be suspended with immediate effect (see paragraphs 27 and 2 9 above). In accordance with the legislation in force, the plant ’ s operation should have been suspended so that the company could bring it into line with environmental-protection regulations and hence obtain a positive assessment from the Ministry of the Environment. However, the administrative authorities did not at any time order the closure of the facility. 93. The Court considers that the State authorities failed to comply with domestic legislation on environmental matters and subsequently refused, in the context of the second set of administrative proceedings, to enforce judicial decisions in which the activities in issue had been found to be unlawful, thereby rendering inoperative the procedural safeguards previously available to the applicant and breaching the principle of the rule of law (see, mutatis mutandis, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 63, ECHR 1999 ‑ V). 94. It considers that the procedural machinery provided for in domestic law for the protection of individual rights, in particular the obligation to conduct an environmental-impact assessment prior to any project with potentially harmful environmental consequences and the possibility for any citizens concerned to participate in the licensing procedure and to submit their own observations to the judicial authorities and, where appropriate, obtain an order for the suspension of a dangerous activity, were deprived of useful effect in the instant case for a very long period. 95. Nor can the Court accept the Government ’ s argument that the decree of 28 April 2004, in which the Ministry of the Environment authorised the continuation of the plant ’ s operation, and the decision of 23 July 2004, in which the Lombardy Regional Administrative Court refused the most recent request by the applicant for a stay of execution, serve as proof of the lack of danger entailed by the activities carried out at the site and of the efforts made by the domestic authorities to strike a fair balance between her interests and those of the community. 96. In the Court ’ s opinion, even supposing that, following the EIA decree of 28 April 2004, the measures and requirements indicated in the decree had been implemented by the relevant authorities and the necessary steps had been taken to protect the applicant ’ s rights, the fact remains that for several years her right to respect for her home was seriously impaired by the dangerous activities carried out at the plant 30 metres away. 97. Having regard to the foregoing, and notwithstanding the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the community in having a plant for the treatment of toxic industrial waste and the applicant ’ s effective enjoyment of her right to respect for her home and her private and family life. 98. The Court therefore dismisses the Government ’ s preliminary objection and finds that there has been a violation of Article 8 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 the sum of 1,500,000 euros (EUR) for pecuniary damage and sought a similar award for non-pecuniary damage. She added that she was prepared to forgo part of the sums claimed if Ecoservizi ’ s operations were immediately stopped or if the facility were moved to another site. 101. The Government submitted that the sums claimed were excessive and that the finding of a violation would constitute sufficient just satisfaction. 102. 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 to discharge its obligation under Article 46 of the Convention (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV). 103. As regards pecuniary damage, the Court observes that the applicant failed to substantiate her claim and did not indicate any causal link between the violation found and the pecuniary damage she had allegedly sustained. 104. The Court considers, however, that the violation of the Convention has indisputably caused the applicant substantial non-pecuniary damage. She felt distress and anxiety as she saw the situation persisting for years. In addition, she had to institute several sets of judicial proceedings in respect of the unlawful decisions authorising the plant ’ s operation. Such damage does not lend itself to precise quantification. Making its assessment on an equitable basis, the Court awards the applicant the sum of EUR 12 ,000. B. Costs and expenses 105. The applicant sought the reimbursement of the costs and expenses incurred before the domestic authorities and the Court. In her bills of costs she quantified her domestic costs at EUR 19,365 and the costs incurred before the Court at EUR 3,598. 106. The Government left the matter to the Court ’ s discretion. 107. According to the Court ’ s settled 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 by the applicant and are reasonable as to quantum (see, among many other authorities, Belziuk v. Poland, 25 March 1998, § 49, Reports 1998-II, and Sardinas Albo v. Italy, no. 56271/00, § 110, 17 February 2005). 108. The Court considers that part of the applicant ’ s costs in the domestic courts were incurred in order to remedy the violation it has found and should be reimbursed ( contrast Serre v. France, no. 29718/96, § 29, 29 September 1999). It is therefore appropriate to award her EUR 5, 000 under that head. The Court also considers it reasonable to award her the sum claimed in respect of the proceedings before it. Accordingly, making its assessment on an equitable basis, it decides to award the applicant the sum of EUR 8, 598. C. Default interest 109. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention, finding that Italy had not succeeded in striking a fair balance between the interest of the community in having a plant for the treatment of toxic industrial waste and the applicant’s effective enjoyment of her right to respect for her home and her private and family life. It noted in particular that the company which operated the plant was not asked to undertake a prior environmental-impact assessment (“EIA”) until 1996, seven years after commencing its activities involving the detoxification of industrial waste. Moreover, during the EIA procedure the Ministry of the Environment had found on two occasions that the plant’s operation was incompatible with environmental regulations on account of its unsuitable geographical location and that there was a specific risk to the health of the local residents. Therefore, even supposing that, following the EIA decree issued by the Ministry of the Environment in 2004 – in which the Ministry had expressed an opinion in favour of the company’s continued operation of the plant provided that it complied with the requirements laid down by the Regional Council in order to improve the conditions for operating and monitoring it –, the necessary steps had been taken to protect the applicant’s rights, the fact remained that for several years her right to respect for her home had been seriously impaired by the dangerous activities carried out at the plant built thirty metres away from her house. |
522 | Criminalisation of homosexual relations in general | II. THE RELEVANT LAW IN IRELAND A. The impugned statutory provisions 12. Irish law does not make homosexuality as such a crime. But certain statutory provisions in force in Ireland penalise certain homosexual activities. Some of these are penalised by the Offences against the Person Act, 1861 ("the 1861 Act") and the Criminal Law Amendment Act, 1885 ("the 1885 Act"). The provisions relevant to the present case are sections 61 and 62 of the 1861 Act. Section 61 of the 1861 Act, as amended in 1892, provides that: "Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be kept in penal servitude for life." Section 62 of the 1861 Act, as similarly amended, provides that: "Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon a male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years." The offences of buggery or of an attempt to commit the same may be committed by male or female persons. Section 11 of the 1885 Act deals only with male persons. It provides that: "Any male person who, in public or in private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour." 13. Sections 61 and 62 of the 1861 Act should be read in conjunction with the provisions of the Penal Servitude Act 1891, section 1, by virtue of which the court is empowered to impose a lesser sentence of penal servitude than that mentioned in the 1861 Act or, in lieu thereof, a sentence of imprisonment for a term not exceeding two years or a fine. The provisions of the 1861 Act and of the 1885 Act are also subject to the power given to the court by section 1(2) of the Probation of Offenders Act 1907, to apply, by way of substitution, certain more lenient measures. The terms "hard labour" and "penal servitude" no longer have any practical significance, since anyone now sentenced to "hard labour" or "penal servitude" will, in practice, serve an ordinary prison sentence. 14. The 1885 Act is the only one of the legislative provisions attacked in the instant case that can be described as dealing solely with homosexual activities. What particular acts in any given case may be held to amount to gross indecency is a matter which is not statutorily defined and is therefore for the courts to decide on the particular facts of each case. B. The enforcement of the relevant statutory provisions 15. The right to prosecute persons before a court other than a court of summary jurisdiction is governed by Article 30, section 3 of the Constitution which is as follows: "All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose." Section 9 of the Criminal Justice (Administration) Act, 1924, as adapted by the Constitution (Consequential Provisions) Act, 1937, provides that: "All criminal charges prosecuted upon indictment in any court shall be prosecuted at the suit of the Attorney General of Ireland." 16. The provisions of the Prosecution of Offences Act 1974 extended to the Director of Public Prosecutions most of the prosecuting functions exercised by the Attorney General. The Director of Public Prosecutions (an office created by that Act) is independent of the Government and a permanent official in the Civil Service of the State as distinct from the Civil Service of the Government. 17. Any member of the public, whether an Irish citizen or not, has the right as a "common informer" to bring a private prosecution. He need not have any direct interest in the alleged offence or be personally affected by it. A private prosecutor ’ s rights are limited in respect of offences which are not triable summarily. In The State (Ennis) v. Farrell [1966] Irish Reports 107, it was held by the Supreme Court that the effect of section 9 of the Criminal Justice (Administration) Act 1924 was that a private prosecutor may conduct a prosecution up to the point where the judge of the District Court decides that the evidence is sufficient to warrant a committal for trial in cases of indictable offences i.e. triable with a jury. Thereafter the Attorney General, or now also the Director of Public Prosecutions, becomes dominus litis and must then consider whether or not he should present an indictment against the accused who has been returned by the District Court for trial with a jury. 18. The offences which are at issue in the present case, namely those set out in sections 61 and 62 of the 1861 Act and in section 11 of the 1885 Act, are indictable offences. Indictable offences are only triable summarily in the District Court if the judge of the District Court is of the opinion that the facts constitute a minor offence and the accused, on being informed of his right to trial by jury, expressly waives that right. This availability of summary trial is provided for by the Criminal Justice Act 1951 and is limited to those indictable offences set out in the Schedule to that Act. This does not include the offences under sections 61 and 62 of the 1861 Act. The summary trial procedure is available in respect of an offence under section 11 of the 1885 Act where the accused is over the age of sixteen years and the person with whom the act is alleged to have been committed is legally unable to consent for being under the age of sixteen years or an idiot, an imbecile or a feeble-minded person. Thus a summary trial can never be had in cases involving consenting adults and, save where the accused pleads guilty, the case can be heard only with a jury whether the prosecution was commenced by a private prosecutor or by the Director of Public Prosecutions. Moreover, the Criminal Procedure Act 1967 permits a person charged with any indictable offence (save an offence under the Treason Act, 1939, murder, attempt to murder, conspiracy to murder, piracy or an offence under section 3 (1) ( i ) of the Geneva Conventions Act, 1962) to plead guilty in the District Court. If the Director of Public Prosecutions, or the Attorney General, as the case may be, consents, the case may be disposed of summarily in that Court. If sentence is imposed by the District Court, it cannot exceed twelve months ’ imprisonment. If the judge of the District Court is of opinion that the offence warrants a greater penalty, he may send the accused forward to the Circuit Court for sentence. In such a case an accused may change his plea to one of "not guilty" and the case will then be tried with a jury. The Circuit Court has a discretion to impose any sentence up to the limit permitted by the relevant statutory provision. 19. Therefore, while a private prosecution may be initiated by a common informer, a prosecution brought under one of the impugned provisions cannot proceed to trial before a jury unless an indictment is laid by the Director of Public Prosecutions. According to the Office of the Director of Public Prosecutions there have not been any private prosecutions arising out of the homosexual activity in private of consenting male adults since the inception of the Office in 1974. 20. The following statement was made by the Office of the Director of Public Prosecutions in September 1984, in reply to a question asked by the Commission: "The Director has no stated prosecution policy on any branch of the criminal law. He has no unstated policy not to enforce any offence. Each case is treated on its merits." The Government ’ s statistics show that no public prosecutions, in respect of homosexual activities, were brought during the relevant period except where minors were involved or the acts were committed in public or without consent. PROCEEDINGS BEFORE THE COMMISSION 25. Mr Norris applied to the Commission on 5 October 1983 (application no. 10581/83). He complained of the existence in Ireland of legislation which prohibits male homosexual activity (sections 61 and 62 of the 1861 Act and section 11 of the 1885 Act). Mr Norris alleged that the prohibition on male homosexual activity constitutes a continuing interference with his right to respect for private life (including sexual life), contrary to Article 8 (art. 8) of the Convention. The National Gay Federation joined with the applicant in the application to the Commission and both made other claims under Articles 1 and 13 (art. 1, art. 13) of the Convention. 26. By decision of 16 May 1985, the Commission declared the application admissible in respect of the alleged interference with Mr Norris ’ s private life. The claims made under Articles 1 and 13 (art. 1, art. 13) were declared inadmissible, as were the aforesaid Federation ’ s entire complaints. In its report adopted on 12 March 1987 (Article 31 of the Convention) (art. 31), the Commission expressed the opinion, by six votes to five, that there had been a violation of Article 8 (art. 8) of the Convention. The full text of the Commission ’ s opinion and the joint dissenting opinion contained in the report is reproduced as an annex to this judgment. FINAL SUBMISSIONS MADE TO THE COURT 27. At the hearing the Government maintained the final submissions in their memorial of 23 October 1987, in which they requested the Court: "(1) to decide and declare that the applicant is not a ‘ victim ’ within the meaning of Article 25 (art. 25) of the European Convention on Human Rights and therefore that there has been no breach of the Convention in this case; or, in the alternative (2) to decide and declare that the present laws in Ireland relating to homosexual acts do not give rise to a breach of Article 8 (art. 8) of the Convention in that the laws are necessary in a democratic society for the protection of morals and for the protection of the rights of others for the purposes of paragraph 2 of Article 8 (art. 8-2) of the Convention." AS TO THE LAW I. WHETHER THE APPLICANT IS ENTITLED TO CLAIM TO BE A VICTIM UNDER ARTICLE 25 PARA. 1 (art. 25-1) 28. The Government asked the Court - and had made the same plea before the Commission - to hold that the applicant could not claim to be a "victim" within the meaning of Article 25 para. 1 (art. 25-1) of the Convention which, so far as is relevant, provides that: "The Commission may receive petitions ... from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention ..." The Government submitted that, since the legislation complained of had never been enforced against the applicant (see paragraphs 11-14 above), his claim was more in the nature of an actio popularis by means of which he sought a review in abstracto of the contested legislation in the light of the Convention. 29. The Commission considered that Mr Norris could claim to be a victim. In this connection, it referred to certain earlier decisions of the Court, namely the Klass and Others judgment of 6 September 1978, the Marckx judgment of 13 June 1979 and the Dudgeon judgment of 22 October 1981 (Series A nos. 28, 31 and 45). In the Commission ’ s view, although the applicant has not been prosecuted or subjected to any criminal investigation, he is directly affected by the laws of which he complains because he is predisposed to commit prohibited sexual acts with consenting adult men by reason of his homosexual orientation. 30. The Court recalls that, whilst Article 24 (art. 24) of the Convention permits a Contracting State to refer to the Commission "any alleged breach" of the Convention by another Contracting State, Article 25 (art. 25) requires that an individual applicant should be able to claim to be actually affected by the measure of which he complains. Article 25 (art. 25) may not be used to found an action in the nature of an actio popularis; nor may it form the basis of a claim made in abstracto that a law contravenes the Convention (see the Klass and Others judgment, previously cited, Series A no. 28, pp. 17-18, para. 33). 31. The Court further agrees with the Government that the conditions governing individual applications under Article 25 (art. 25) of the Convention are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 25 (art. 25) and, whilst those purposes may sometimes be analogous, they need not always be so (ibid., p. 19, para. 36). Be that as it may, the Court has held that Article 25 (art. 25) of the Convention entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see the Johnston and Others judgment of 18 December 1986, Series A no. 112, p. 21, para. 42, and the Marckx judgment, previously cited, Series A no. 31, p. 13, para. 27). 32. In the Court ’ s view, Mr Norris is in substantially the same position as the applicant in the Dudgeon case, which concerned identical legislation then in force in Northern Ireland. As was held in that case, "either [he] respects the law and refrains from engaging - even in private and with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution" (Series A no. 45, p. 18, para. 41). 33. Admittedly, it appears that there have been no prosecutions under the Irish legislation in question during the relevant period except where minors were involved or the acts were committed in public or without consent. It may be inferred from this that, at the present time, the risk of prosecution in the applicant ’ s case is minimal. However, there is no stated policy on the part of the prosecuting authorities not to enforce the law in this respect (see paragraph 20 above). A law which remains on the statute book, even though it is not enforced in a particular class of cases for a considerable time, may be applied again in such cases at any time, if for example there is a change of policy. The applicant can therefore be said to "run the risk of being directly affected" by the legislation in question. This conclusion is further supported by the High Court ’ s judgment of 10 October 1980, in which Mr Justice McWilliam, on the witnesses ’ evidence, found, inter alia, that "One of the effects of criminal sanctions against homosexual acts is to reinforce the misapprehension and general prejudice of the public and increase the anxiety and guilt feelings of homosexuals leading, on occasions, to depression and the serious consequences which can follow from that unfortunate disease" (see paragraph 21 above). 34. On the basis of the foregoing considerations, the Court finds that the applicant can claim to be the victim of a violation of the Convention within the meaning of Article 25 para. 1 (art. 25-1) thereof. That being so, the Court does not consider it necessary to examine further the applicant ’ s allegations with regard to, inter alia, threats of prosecution, claims of interference with his mail, the upholding of a complaint against a television programme on which he appeared and the evidence he gave before the High Court of Ireland of his psychiatric problems (see paragraph 10 above). II. THE ALLEGED BREACH OF ARTICLE 8 (art. 8) A. The existence of an interference 35. Mr Norris complained that under the law in force in Ireland he is liable to criminal prosecution on account of his homosexual conduct. He alleged that he has thereby suffered, and continues to suffer, an unjustified interference with his right to respect for his private life, in breach of Article 8 (art. 8) which provides that: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." 36. The Commission (at paragraph 55 of its report) considered that "One of the main purposes of penal legislation is to deter the proscribed behaviour, and citizens are deemed to conduct themselves, or modify their behaviour, in such a way as not to contravene the criminal law. It cannot be said, therefore, that the applicant runs no risk of prosecution or that he can wholly ignore the legislation in question." The Commission, therefore, found that the legislation complained of interferes with the applicant ’ s right to respect for his private life, guaranteed by Article 8 para. 1 (art. 8-1) of the Convention, in so far as it prohibits the homosexual activities in question even when committed in private between consenting adult men. 37. The Government, on the other hand, contended that it was not possible to conclude that there had been any lack of respect for the applicant ’ s rights under the Convention. In support of their contention, the Government relied on the fact that the applicant had been able to maintain an active public life side by side with a private life free from any interference on the part of the State or its agents. They further submitted that no derogation from the applicant ’ s fundamental rights occurs by virtue of the mere existence of laws restricting homosexual behaviour under pain of legal sanction. 38. The Court agrees with the Commission that, with regard to the interference with an Article 8 (art. 8) right, the present case is indistinguishable from the Dudgeon case. The laws in question are applied so as to prosecute persons in respect of homosexual acts committed in the circumstances mentioned in the first sentence of paragraph 33. Above all, and quite apart from those circumstances, enforcement of the legislation is a matter for the Director of Public Prosecutions who may not fetter his discretion with regard to each individual case by making a general statement of his policy in advance (see paragraph 20). A prosecution may, in any event, be initiated by a member of the public acting as a common informer (see paragraphs 15-19 above). It is true that, unlike Mr Dudgeon, Mr Norris was not the subject of any police investigation. However, the Court ’ s finding in the Dudgeon case that there was an interference with the applicant ’ s right to respect for his private life was not dependent upon this additional factor. As was held in that case, "the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant ’ s right to respect for his private life ... within the meaning of Article 8 para. 1 (art. 8-1). In the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life ..." (Series A no. 45, p. 18, para. 41). The Court therefore finds that the impugned legislation interferes with Mr Norris ’ s right to respect for his private life under Article 8 para. 1 (art. 8-1). B. The existence of a justification for the interference 39. The interference found by the Court does not satisfy the conditions of paragraph 2 of Article 8 (art. 8-2) unless it is "in accordance with the law", has an aim which is legitimate under this paragraph and is "necessary in a democratic society" for the aforesaid aim (see, as the most recent authority, the Olsson judgment of 24 March 1988, Series A no. 130, p. 29, para. 59). 40. It is common ground that the first two conditions are satisfied. As the Commission pointed out in paragraph 58 of its report, the interference is plainly "in accordance with the law" since it arises from the very existence of the impugned legislation. Neither was it contested that the interference has a legitimate aim, namely the protection of morals. 41. It remains to be determined whether the maintenance in force of the impugned legislation is "necessary in a democratic society" for the aforesaid aim. According to the Court ’ s case-law, this will not be so unless, inter alia, the interference in question answers a pressing social need and in particular is proportionate to the legitimate aim pursued (see, amongst many other authorities, the above-mentioned Olsson judgment, Series A no. 130, p. 31, para. 67). 42. In this respect, the Commission again was of the opinion that the present case was indistinguishable from that of Mr Dudgeon. At paragraph 62 of its report it quoted extensively from those paragraphs of the Dudgeon judgment (paragraphs 48-63) in which this question was discussed. In that judgment it was accepted that, since "some form of legislation is ‘ necessary ’ to protect particular sections of society as well as the moral ethos of society as a whole, the question in the present case is whether the contested provisions of the law ... and their enforcement remain within the bounds of what, in a democratic society, may be regarded as necessary in order to accomplish those aims" (Series A no. 45, p. 21, para. 49). It was not contended before the Commission that there is a large body of opinion in Ireland which is hostile or intolerant towards homosexual acts committed in private between consenting adults. Nor was it argued that Irish society had a special need to be protected from such activity. In these circumstances, the Commission concluded that the restriction imposed on the applicant under Irish law, by reason of its breadth and absolute character, is disproportionate to the aims sought to be achieved and therefore is not necessary for one of the reasons laid down in Article 8 para. 2 (art. 8-2) of the Convention. 43. At the oral hearing, the Government argued that, whilst the criteria of pressing social need and proportionality were valid yardsticks for testing restrictions imposed in the interests of national security, public order or the protection of public health, they could not be applied to determine whether an interference is "necessary in a democratic society" for the protection of morals; and that further a wider view of necessity should be taken in an area in which the Contracting States enjoy a wide margin of appreciation. In the Government ’ s opinion, the application of these criteria emptied the "moral exception" of meaning. In their view, the identification of "necessity" with "pressing social need" in the context of moral values is too restrictive and produces a distorting result, while the test of proportionality involves the evaluation of a moral issue and this is something that the Court should avoid if possible. Within broad parameters the moral fibre of a democratic nation is a matter for its own institutions and the Government should be allowed a degree of tolerance in their compliance with Article 8 (art. 8), that is to say, a margin of appreciation that would allow the democratic legislature to deal with this problem in the manner which it sees best. 44. The Court is not convinced by this line of argument. As early as 1976, the Court declared in its Handyside judgment of 7 December 1976 that, in investigating whether the protection of morals necessitated the various measures taken, it had to make an "assessment of the reality of the pressing social need implied by the notion of ‘ necessity ’ in this context" and stated that "every ‘ restriction ’ imposed in this sphere must be proportionate to the legitimate aim pursued" (Series A no. 24, pp. 21-23, paras. 46, 48 and 49). It confirmed this approach in its Dudgeon judgment (Series A no. 45, pp. 20-22, paras. 48 et seq.). The more recent case of Müller and Others demonstrates that, in the context of the protection of morals, the Court continues to apply the same tests for determining what is "necessary in a democratic society". In that case, the Court, in reaching its decision, examined whether the contested measures, which pursued the legitimate aim of protecting morals, both answered a pressing social need and complied with the principle of proportionality (see the judgment of 24 May 1988, Series A no. 133, pp. 21-23, paras. 31-37 and pp. 24-25, paras. 40-44). The Court sees no reason to depart from the approach which emerges from its settled case-law and, although of the three aforementioned judgments two related to Article 10 (art. 10) of the Convention, it sees no cause to apply different criteria in the context of Article 8 (art. 8). 45. Moreover, in making their submission that the definition of "necessity" should be given a wider interpretation, the Government in effect put forward no viable tests of their own to replace or complement those mentioned above. The Government ’ s contention would therefore appear to be that the State ’ s discretion in the field of the protection of morals is unfettered. Whilst national authorities - as the Court acknowledges - do enjoy a wide margin of appreciation in matters of morals, this is not unlimited. It is for the Court, in this field also, to give a ruling on whether an interference is compatible with the Convention (see the previously cited Handyside judgment, Series A no. 24, p. 23, para. 49). The Government are in effect saying that the Court is precluded from reviewing Ireland ’ s observance of its obligation not to exceed what is necessary in a democratic society when the contested interference with an Article 8 (art. 8) right is in the interests of the "protection of morals". The Court cannot accept such an interpretation. To do so would run counter to the terms of Article 19 (art. 19) of the Convention, under which the Court was set up in order "to ensure the observance of the engagements undertaken by the High Contracting Parties ...". 46. As in the Dudgeon case, "... not only the nature of the aim of the restriction but also the nature of the activities involved will affect the scope of the margin of appreciation. The present case concerns a most intimate aspect of private life. Accordingly, there must exist particularly serious reasons before interferences on the part of public authorities can be legitimate for the purposes of paragraph 2 of Article 8 (art. 8-2)" (Series A no. 45, p. 21, para. 52). Yet the Government have adduced no evidence which would point to the existence of factors justifying the retention of the impugned laws which are additional to or are of greater weight than those present in the aforementioned Dudgeon case. At paragraph 60 of its judgment of 22 October 1981 (ibid., pp. 23-24), the Court noted that "As compared with the era when [the] legislation was enacted, there is now a better understanding, and in consequence an increased tolerance, of homosexual behaviour to the extent that in the great majority of the member States of the Council of Europe it is no longer considered to be necessary or appropriate to treat homosexual practices of the kind now in question as in themselves a matter to which the sanctions of the criminal law should be applied; the Court cannot overlook the marked changes which have occurred in this regard in the domestic law of the member States". It was clear that "the authorities [had] refrained in recent years from enforcing the law in respect of private homosexual acts between consenting [adult] males ... capable of valid consent". There was no evidence to show that this "[had] been injurious to moral standards in Northern Ireland or that there [had] been any public demand for stricter enforcement of the law". Applying the same tests to the present case, the Court considers that, as regards Ireland, it cannot be maintained that there is a "pressing social need" to make such acts criminal offences. On the specific issue of proportionality, the Court is of the opinion that "such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions in question can have on the life of a person of homosexual orientation like the applicant. Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved" (ibid., p. 24, para. 60). 47. The Court therefore finds that the reasons put forward as justifying the interference found are not sufficient to satisfy the requirements of paragraph 2 of Article 8 (art. 8-2). There is accordingly a breach of that Article (art. 8). III. THE APPLICATION OF ARTICLE 50 (art. 50) 48. Under Article 50 (art. 50) of the Convention: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." The applicant seeks compensation for damage and reimbursement of legal costs and expenses. A. Damage 49. The applicant requested the Court to fix such amount by way of damages as would recognise the extent to which he has suffered from the maintenance in force of the legislation. The Government submitted that the Court should follow its decision of 24 February 1983 in the Dudgeon case on this point (see Series A no. 59) in which it held that a finding of a breach of Article 8 (art. 8) in itself constituted just satisfaction. 50. In reaching the aforementioned decision, the Court took into account the change in the law which had been effected with regard to Northern Ireland in compliance with the Court ’ s judgment of 22 October 1981 (Series A no. 59, pp. 7-8, paras. 11-14). No similar reform has been carried out in Ireland. As in the Marckx case, it is inevitable that the Court ’ s decision will have effects extending beyond the confines of this particular case, especially since the violation found stems directly from the contested provisions and not from individual measures of implementation. It will be for Ireland to take the necessary measures in its domestic legal system to ensure the performance of its obligation under Article 53 (art. 53) (Series A no. 31, p. 25, para. 58). For this reason and notwithstanding the different situation in the present case as compared with the Dudgeon case, the Court is of the opinion that its finding of a breach of Article 8 (art. 8) constitutes adequate just satisfaction for the purposes of Article 50 (art. 50) of the Convention and therefore rejects this head of claim. B. Costs and expenses 51. In respect of the proceedings before the national courts, the Supreme Court awarded the applicant taxed costs in the amount of IR£75,762.12 (see paragraph 24 above). He submitted that this amount did not in fact fully cover the actual expenditure incurred. The Court cannot accept this head of claim. The costs having been assessed by a Taxing Master in accordance with the law of Ireland, it is not the Court ’ s role to reassess them. 52. The applicant also sought an amount of IR£14,962.49 for costs and expenses, details of which he furnished, in respect of the proceedings conducted before the Convention institutions. Whilst not contesting that the applicant had incurred additional liabilities over and above the amounts received by him by way of legal aid, the Government claimed that the legal costs sought by him were not reasonable as to quantum and required reassessment. The Court notes, however, that the Government made no counter-proposal as to what might constitute a reasonable amount. The Court considers that the amount claimed satisfies the criteria laid down in its case-law (see among other authorities the Belilos judgment of 29 April 1988, Series A no. 132, pp. 27-28, para. 79) and awards to the applicant, in respect of costs and expenses, IR£14,962.49 less 7,390 French francs already paid in legal aid. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It found that it could not be maintained that in Ireland there was a “pressing social need” to make homosexual acts criminal offences. In particular, although members of the public who regarded homosexuality as immoral might be shocked, offended or disturbed by such acts, this could not on its own warrant the application of penal sanctions when consenting adults alone were involved. |
703 | Dissolution or prohibition of political parties or associations | ii. relevant domestic law The Constitution 16. The relevant provisions of the Constitution read as follows: Article 2 “The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.” Article 3 § 1 “The State of Turkey shall constitute with its territory and nation, an indivisible whole. The official language shall be Turkish.” Article 4 “No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.” Article 6 “Sovereignty shall reside unconditionally and unreservedly in the nation. ... Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class...” Article 10 § 1 “All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.” Article 14 § 1 “None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.” Article 66 § 1 “Everyone linked to the Turkish State by nationality shall be Turkish.” (Former) Article 68 “... No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship...” (Former) Article 69 “Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution. ... The decisions and internal running of political parties shall not be contrary to democratic principles. ... Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities. Political parties may be dissolved by the Constitutional Court, on an application by Principal State Counsel. Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party...” B. Law no. 2820 on the regulation of political parties 17. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows: Section 78 “Political parties (a) shall not aim, strive or incite third parties to change the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State's territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class...; jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept. ... (c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims...” Section 80 “Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.” Section 81 “Political parties shall not (a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or (b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities...” Section 90(1) “The constitution, programme and activities of political parties may not contravene the Constitution or this Law.” Section 101 “The Constitutional Court shall dissolve a political party whose (a) constitution or programme ... is contrary to the provisions of Chapter 4 of this Law; (b) membership, central committee or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law ..., or whose Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions... (c) representative appointed ... by the administrative committee ..., makes oral statements on radio or television that are contrary to the provisions ... of this Law...” Section 107(1) “All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.” Chapter 4 of the Law, which is referred to in section 101, includes in particular section 90(1), which is reproduced above. C. The Criminal Code 18. At the material time Article 142 of the Criminal Code provided: “Harmful propaganda 1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or destroying the entire political or judicial order of the State shall, on conviction, be liable to a term of imprisonment of between five and ten years. 2. A person who by any means whatsoever spreads propaganda in favour of the State's being governed by an individual or social group to the detriment of republicanism or democratic principles shall, on conviction, be liable to a term of imprisonment of between five and ten years. 3. Any person who by any means whatsoever spreads propaganda inspired by racist theories aimed at abolishing in whole or in part public-law rights as guaranteed by the Constitution or undermining or eliminating patriotic sentiment shall, on conviction, be liable to a term of imprisonment of between five and ten years. ...” PROCEEDINGS BEFORE THE COMMISSION 19. The applicants applied to the Commission on 31 December 1992. They maintained that the dissolution of the SP by the Constitutional Court had infringed: (i) Article 6 §§ 1 and 2 and Articles 9, 10, and 11 of the Convention, taken individually and together with Articles 14 and (in the case of Articles 9, 10 and 11) 18 of the Convention; (ii) Articles 1 and 3 of Protocol No. 1. 20. On 6 December 1994 the Commission declared the complaint under Article 6 § 2 of the Convention inadmissible and the remainder of the application (no. 21237/93) admissible. 21. In its report of 26 November 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 11 of the Convention but no violation of Article 6 § 1, that no separate issue arose under Articles 9 and 10 and that it was unnecessary to consider separately the complaints under Articles 14 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1. The full text of the Commission's opinion is reproduced as an annex to this judgment [7]. FINAL SUBMISSIONS TO THE COURT 22. In their memorial, the Government “... asked the Court to declare that there had been no violation of Articles 6, 9, 10, 11, 14 or 18 of the Convention or of Articles 1 or 3 of Protocol No. 1”. 23. The applicants asked the Court to hold that there had been a breach of the rights guaranteed by the aforementioned provisions of the Convention and Protocol No. 1. AS TO THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 24. The applicants maintained that the fact that the Socialist Party (“the SP”) had been dissolved and its leaders banned from holding similar office in any other political party had infringed their right to freedom of association, as guaranteed by 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.” Applicability of Article 11 1. Submissions of those appearing before the Court (a) The applicants 25. The applicants maintained that there was no doubt that political parties came within the ambit of Article 11. (b) The Government 26. In their memorial the Government submitted that Article 11 did not in any event apply to political parties. Where in its constitution or programme a party attacked a State's constitutional order, the Court should declare the Convention to be inapplicable ratione materiae or apply Article 17. 27. The SP had intended through its activities unambiguously to break with Turkey's fundamental constitutional principles. It was apparent from what the SP said that the party considered that citizens of Kurdish origin had “nation” and “people” status and the right to “found a separate State”, that it advocated the setting up of a federation, without moreover excluding the creation of other federated bodies entitled to open consulates in other countries. As that amounted to challenging the very basis of the State, the Constitutional Court had had to review the constitutionality of that political aim. In so doing, it had followed the line taken by the German Constitutional Court in its judgment of 31 October 1991 on the right of foreign nationals to vote in local elections and by the French Constitutional Council in its decision of 9 May 1991 on the status of Corsica. In the Government's submission, the States Parties to the Convention had at no stage intended to submit their constitutional institutions, and in particular the principles they considered to be the essential conditions of their existence, to review by the Strasbourg institutions. For that reason, where a political party such as the SP had called those institutions or principles into question, it could not seek application of the Convention or its Protocols, since it was not the SP's freedom of association that was in issue in the present case, but the right to self-determination, which did not come within the compass of the Convention. At the very least, Article 17 of the Convention should be applied in respect of the SP since the party sought to justify the use of violence and to promote hatred of the Turkish State and the wrongful division of an entire people into two opposing camps. In so doing, the SP had said the same things as the Workers' Party of Kurdistan (“the PKK”), without distancing itself from any of the latter's methods. Moreover, the Constitutional Court had, in its judgment ordering the dissolution of the SP, recognised that Article 17 was relevant in the case of the SP and concluded that the party's activities were covered by that provision. (c) The Commission 28. The Commission expressed the opinion that there was nothing in the wording of Article 11 to limit its scope to a particular form of association or group or to suggest that it did not apply to political parties. On the contrary, if Article 11 was considered to be a legal safeguard that ensured the proper functioning of democracy, political parties were one of the most important forms of association it protected. In that connection, the Commission referred to a number of decisions in which it had examined, under Article 11, various restrictions on the activities of political parties and even the dissolution of such parties, thereby implicitly accepting that Article 11 applied to that type of association (see the German Communist Party case, application no. 250/57, Yearbook 1, p. 225; the Greek case, Yearbook 12, p. 170, § 392; the France, Norway, Denmark, Sweden and the Netherlands v. Turkey case, applications nos. 9940–9944/82, Decisions and Reports 35, p. 143). At the hearing before the Court the Delegate of the Commission also said that it was unnecessary to apply Article 17 of the Convention, since neither the SP's programme nor the statements made by Mr Perinçek that were in issue indicated that they had sought to destroy the rights and freedoms protected by the Convention. 2. The Court's assessment 29. In its judgment in the case of United Communist Party of Turkey and Others v. Turkey, the Court held that political parties are a form of association essential to the proper functioning of democracy and that in view of the importance of democracy in the Convention system, there can be no doubt that political parties come within the scope of Article 11. The Court noted on the other hand that an association, including a political party, is not excluded from the protection afforded by the Convention simply because its activities are regarded by the national authorities as undermining the constitutional structures of the State and calling for the imposition of restrictions (see the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 17, §§ 25 and 27). The Court sees no reason to come to a different conclusion in the instant case. As to the application of Article 17, the Court will deal with it after considering the question of compliance with Article 11 (see paragraph 53 below). B. Compliance with Article 11 Whether there was an interference 30. All those appearing before the Court acknowledged that the SP's dissolution amounted to an interference in the three applicants' right to freedom of association. That is also the Court's view. 2. Whether the interference was justified 31. Such an 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. (a) “Prescribed by law” 32. It was common ground that the interference was “prescribed by law”, as the measures ordered by the Constitutional Court were based on Articles 2, 3 § 1, 6, 10 § 1 and 14 § 1 and former Article 68 of the Constitution and sections 78, 81 and 96(3) of Law no. 2820 on the regulation of political parties (see paragraphs 16–17 above). (b) Legitimate aim 33. The Government maintained that the interference pursued a number of legitimate aims: ensuring national security, public safety and territorial integrity and protecting the rights and freedoms of others. If the Court had accepted, as it had done in the Hadjianastassiou v. Greece judgment of 16 December 1992 (Series A no. 252), that an isolated case of espionage could harm national security, there was all the more reason to reach a similar conclusion where, as in the instant case, the very existence of a State Party to the Convention was threatened. 34. The applicants observed that before the Constitutional Court Principal State Counsel had at no stage relied on either national security or public safety. 35. The Commission considered that prohibiting activities which, in the authorities' view, were likely to cause the collapse of the State or the division of its territory could be said to be intended to protect “national security” and territorial integrity. 36. The Court considers that the dissolution of the SP pursued at least one of the legitimate aims set out in Article 11: the protection of “national security”. (c) “Necessary in a democratic society” i. Submissions of those appearing before the Court (α) The applicants 37. The applicants said that in a pluralist democratic and parliamentary system, people should have the right to express their opinion on the Kurdish problem and on how to resolve it. The SP was a political party supported by a sector of public opinion which should have had the right to accede to power. The SP bore no resemblance to the German Communist Party that had been dissolved at the time by the German Federal Constitutional Court (see application no. 250/57, Yearbook 1, p. 225). Otherwise, the Turkish Constitutional Court would not have dismissed, on 8 December 1988, the first application for the SP to be dissolved (see paragraph 10 above). In that decision the Constitutional Court had found the party's constitution and programme to be in accordance with the Constitution and that it was part of the country's democratic system and clearly opposed terrorism. The SP had never acted unlawfully and the best proof of that was that its then Chairman, Mr Perinçek, was now Chairman of another political party, the Workers' Party, and carried on his work quite lawfully. The SP had always defended the union of the Turkish State. The federal system it proposed as a solution to the Kurdish problem would not prevent State unity. Germany and Switzerland were federations and no one saw in that status a programme to divide those countries. As for Turkey, federation would, on the contrary, afford a much more reliable solution for the future. (β) The Government 38. In the Government's submission, any resemblance between the present case and that of the United Communist Party of Turkey (“the TBKP”) was in appearances only, the sole real similarity lying in the fact that both parties had been dissolved by an order of the Constitutional Court. In the case of the TBKP the Constitutional Court's task had been to assess whether the party's programme and constitution complied with the Constitution and the Law on the regulation of political parties. In the case of the SP on the other hand – as the Constitutional Court had clearly explained in its judgment – the court had had to assess whether the SP's activities subsequent to its formation were consistent with those documents. After the first review of the constitutionality of the party (see paragraphs 9–10 above), new facts and evidence had come to light concerning the SP's activities, which the Commission, unlike the Constitutional Court, had failed to take into account. They showed that from 1990, and in particular in 1991, the SP's activities had shifted radically away from its initial approach reflected in its constitutive documents and were directed towards the disruption of the fundamental concepts which have inspired the Republic of Turkey since its formation. The shift was to be seen in particular in the speeches made by the SP's Chairman, Mr Perinçek, at meetings, congresses or political rallies, some of which were later published by the party. He had used violent, aggressive and provocative language, denigrated all the other political parties and sought to vindicate the use of violence and terrorist methods by calling for an uprising through the use, inter alia, of the expression “ Ayağa kalk ”, which meant “stand up”. The Constitutional Court consequently found that the language and methods of the SP were not at all consistent with its calls for brotherhood and equality. 39. Referring to the Court's analysis of the situation in Turkey in its judgment in the case of Zana v. Turkey of 25 November 1997 ( Reports 1997-VII), the Government said that in 1990 and 1991 there had been an intolerable increase in terrorist activity that had caused thousands of deaths and had spared neither women nor children. Against that background, the declarations of a well-known political leader were bound to aggravate the violence and hatred. In such cases, the authority to the effect that freedom of expression also applied to statements that offended, shocked or disturbed bore no relevance. In the present case, the Court was not concerned with a political debate on political and economic issues of interest to the whole country, but with incitement to join a bloody and murderous conflict between two sections of the population which enjoyed, without any discrimination, all the rights and liberties defined by the Constitution and statute. In that connection, the Government referred, as they had done in the TBKP case (see the judgment cited above, pp. 23–24, § 49), to the Commission's case-law whereby if the interference pursued as a legitimate aim the protection of public order, territorial integrity, the public interest or democracy, the Convention institutions did not require that the risk of violence justifying the interference should be real, current or imminent. Nor was it at all relevant to rely on Mr Perinçek's acquittals before the National Security Courts in order to contest the necessity of the interference in issue, as two types of proceedings, pursuing entirely different aims, were involved: the first type was criminal proceedings, in which the court ruled on an individual's personal responsibility, whereas in the second type of proceedings – constitutional proceedings, such as those impugned before the Court – the sole issue was whether a political party was compatible with the Convention and that necessitated applying different criteria. (γ) The Commission 40. The Commission considered that the SP's dissolution had not been necessary in a democratic society. It noted that Mr Perinçek had previously been prosecuted in the criminal courts for making statements to the same effect as those made in the present case, but had been acquitted of the charges against him. The Commission inferred that even in the eyes of the Turkish judicial authorities, the publications did not contain anything intended to encourage extremist or terrorist groups to destroy the constitutional order of the State or to found a Kurdish State through the use of force. The Commission also observed that the SP had sought to achieve its political aims solely through lawful means and that it had not been shown that the SP had had any intention of destroying Turkey's democratic and pluralist order or had advocated infringing fundamental human rights by promoting racial discrimination. ii. The Court's assessment 41. 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. 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 emphasised 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. 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, among other authorities, the United Communist Party of Turkey and Others judgment cited above, pp. 20–21, §§ 42–43). 42. In the instant case it must first be noted that in its judgment of 10 July 1992 the Constitutional Court held that on that occasion it no longer had to consider whether the SP's programme and constitution were lawful, but only whether its political activities contravened the statutory prohibitions. In dissolving the party, the Constitutional Court had had regard to public statements – some of them in written form – made by Mr Perinçek which it considered to constitute new facts and evidence that were binding on the SP (see paragraph 15 above). Consequently, the Court may confine itself to examining those statements. 43. The Constitutional Court noted that, by distinguishing two nations –the Kurdish nation and the Turkish nation – Mr Perinçek had advocated the creation of minorities within Turkey and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. The SP was ideologically opposed to the nationalism of Atatürk, which was the most fundamental principle underpinning the Republic of Turkey. Although different methods were used, the aim of the SP's political activity was similar to that of terrorist organisations. As the SP promoted separatism and revolt its dissolution was justified (see paragraph 15 above). 44. In the light of these factors, the Court must firstly consider the content of the statements in issue and then determine whether they justified the dissolution of the SP. With regard to the first issue the Court reiterates that when it 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. In so doing, the Court has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 22, § 47). 45. Further, the Court has previously held that one of the principal characteristics of democracy is the possibility it offers of resolving a country's problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression. From that point of view, there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State's population and to take part in the nation's political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 57). 46. Having analysed Mr Perinçek's statements, the Court finds nothing in them that can be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles. On the contrary, he stressed on a number of occasions the need to achieve the proposed political reform in accordance with democratic rules, through the ballot box and by holding referenda. At the same time, he spoke out against “the former culture idolising violence and advocating the use of force to solve problems between nations and in society” (see paragraph 13 above). At the hearing the Agent for the Government stated that Mr Perinçek had “justified the use of violent and terrorist methods” by saying in particular: “The Kurd has proved himself through the fight of impoverished peasants by linking its destiny [to theirs]. By holding meetings with thousands of people in the towns and provinces, the Kurd had proved himself and broken down the barriers of fear.” Furthermore, by calling on those present to “sow courage, rather than watermelons”, Mr Perinçek had, in the Government's submission, “exhorted them to stop all activities other than the destruction of order”. Lastly, by using the phrase “The Kurdish people are standing up” he had called upon them to revolt. While the Court accepts that these phrases were directed at citizens of Kurdish origin and constituted an invitation to them to rally together and assert certain political claims, it finds no trace of any incitement to use violence or infringe the rules of democracy. In that regard, the relevant statements were scarcely any different from those made by other political groups that were active in other countries of the Council of Europe. 47. The Constitutional Court had also criticised Mr Perinçek for having drawn a distinction between two nations, the Kurdish nation and the Turkish nation, in his speeches and of thereby pleading in favour of creating minorities and the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the State. Ultimately, the SP had advocated separatism. The Court notes that, read together, the statements put forward a political programme with the essential aim being the establishment, in accordance with democratic rules, of a federal system in which Turks and Kurds would be represented on an equal footing and on a voluntary basis. Admittedly, reference is made to the right to self-determination of the “Kurdish nation” and its right to “secede”; however, read in their context, the statements using these words do not encourage secession from Turkey but seek rather to stress that the proposed federal system could not come about without the Kurds' freely given consent, which should be expressed through a referendum. In the Court's view, the fact that such a political programme is considered incompatible with the current principles and structures of the Turkish State does not make it incompatible with the rules of democracy. It is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself. 48. It is true here too that, as was the case with the TBKP (see the United Communist Party of Turkey and Others judgment cited above, p. 27, § 58), it cannot be ruled out that the statements in issue concealed objectives and intentions different from the ones proclaimed in public. In the absence of concrete actions belying Mr Perinçek's sincerity in what he said, however, that sincerity should not be doubted. The SP was thus penalised for conduct relating solely to the exercise of freedom of expression. 49. The Court also notes that Mr Perinçek was acquitted in the National Security Courts where he had been prosecuted in respect of the same statements (see paragraph 11 above). In that connection the Government stressed that the two types of proceedings were entirely different, one concerning the application of criminal law, the other the application of constitutional law. The Court merely notes that the Turkish courts had divergent views as to the effect of Mr Perinçek's statements. It is now important to determine whether, in the light of the above considerations, the SP's dissolution can be considered to have been necessary in a democratic society, that is to say whether it met a “pressing social need” and was “proportionate to the legitimate aim pursued” (see, among many other authorities and mutatis mutandis, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, pp. 25–26, § 52). 50. The Court reiterates that, having regard to the essential role of political parties in the proper functioning of democracy (see the United Communist Party of Turkey and Others judgment cited above, p. 17, § 25), 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 (see the United Communist Party of Turkey and Others judgment cited above, p. 22, § 46). 51. The Court observes that the interference in question was radical: the SP was dissolved with immediate and permanent effect, its assets were liquidated and transferred ipso jure to the Treasury and its leaders – who admittedly did not include Mr Perinçek when the party was dissolved (see paragraph 14 above) – were banned from carrying on certain similar political activities. Measures as severe as those may only be applied in the most serious cases. 52. The Court has already noted that Mr Perinçek's statements, though critical and full of demands, did not appear to it to call into question the need for compliance with democratic principles and rules. The Court is prepared to take into account the background of cases before it, in particular the difficulties associated with the prevention of terrorism (see, among other authorities, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 59). In the present case, however, it has not been established how, in spite of the fact that in making them their author declared attachment to democracy and expressed rejection of violence, the statements in issue could be considered to have been in any way responsible for the problems which terrorism poses in Turkey. 53. In view of the findings referred to above, there is no need either to bring Article 17 into play, as nothing in the statements warrants the conclusion that their author relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see, mutatis mutandis, the United Communist Party of Turkey and Others judgment cited above, p. 27, § 60). 54. In conclusion, the dissolution of the SP was disproportionate to the aim pursued and consequently unnecessary in a democratic society. It follows that there has been a violation of Article 11 of the Convention. II. ALLEGED VIOLATIONs OF ARTICLES 9, 10, 14 AND 18 OF THE CONVENTION 55. The applicants also maintained that there had been breaches of Articles 9, 10, 14 and 18 of the Convention. As their complaints relate to the same facts the Court considers it unnecessary to examine them separately. III. ALLEGED VIOLATIONs OF ARTICLES 1 AND 3 OF PROTOCOL No. 1 56. The applicants further submitted that the effects of the SP's dissolution – its assets were confiscated and transferred to the Treasury, and its leaders were banned from taking part in elections – entailed a breach of Articles 1 and 3 of Protocol No. 1, which provide: Article 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 3 “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.” 57. The Court notes that the measures complained of by the applicants were incidental effects of the SP's dissolution, which the Court has held to amount to a breach of Article 11. It is consequently unnecessary to consider those complaints separately. IV. ALLEGED VIOLATION OF Article 6 § 1 OF the Convention 58. Lastly, the applicants complained that instead of holding a public hearing, the Constitutional Court had heard them merely in camera and that they had not had access to the case file or the verbatim record of the hearing. They considered that that amounted to a breach of Article 6 § 1 of the Convention. 59. Neither the Government nor the Commission considered that Article 6 § 1 was applicable on the facts of the case. 60. In view of its conclusion concerning compliance with Article 11, the Court considers that it is unnecessary to examine this complaint. V. APPLICATION OF ARTICLE 50 OF THE CONVENTION 61. Article 50 of the Convention provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Annulment of the order for dissolution 62. The applicants firstly requested the annulment of the Constitutional Court's order of 10 July 1992 dissolving the SP. They also sought “recognised political-party status” for the SP. 63. The Court holds that it has no jurisdiction under the Convention to order these measures (see, mutatis mutandis, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 57, § 47). B. Damage and costs and expenses 64. In respect of pecuniary damage the applicants claimed 1,500,000 US dollars (USD): USD 1,000,000 for the SP and USD 250,000 each for Mr Doğu Perinçek and Mr İlhan Kırıt. They sought USD 6,000,000 for non-pecuniary damage, that is USD 2,000,000 for each applicant. In support of their claims they stressed that the SP had had more than 400 offices spread over the whole of Turkey, all its assets had been seized, it had had the right to present candidates at the elections, had taken part in the elections and was the only left-wing socialist party in existence when it was dissolved. According to the applicants, the thousands of people who had helped to form the SP – which had been active for four years before its dissolution – and the leaders of that party had sustained substantial non-pecuniary damage and financial loss. The applicants also sought “reimbursement of all the costs to which the case had given rise”. At the hearing before the Court, they explained that the fees and costs of the 308 lawyers who had represented the SP before the Constitutional Court alone had come to 1,955,800 French francs (FRF). As to the costs of the applicants' representation before the Convention institutions, they had come to FRF 300,000. 65. As its main submission, the Government considered that no compensation was payable in this case. In the alternative, they considered the applicants' claims exorbitant. In the further alternative, they argued that a violation of Article 11 only could not confer on the applicants a right to be compensated individually. As to the alleged pecuniary damage, the Government affirmed that it had no causal link with the SP's dissolution, that political parties and their leaders could not be equated with commercial undertakings and that in any event there was no supporting accounting evidence for the claims. As for the claims in respect of non-pecuniary damage, the Government considered them to be “even more unreliable” since not only were they exorbitant but they included a claim for non-pecuniary damage allegedly sustained by the SP itself. Lastly, as regards the claims for costs and expenses, the Government found them to be insufficiently detailed. 66. The Delegate of the Commission submitted that the applicants' presentation – which was very general and hypothetical – was insufficient to allow their claims under Article 50 to be upheld. 67. The Court notes that the applicants have not furnished any evidence in support of their claims for substantial sums in respect of pecuniary damage and costs and expenses. Consequently, it cannot uphold those claims (see, mutatis mutandis, the Pressos Compania Naviera S.A. and Others v. Belgium judgment of 3 July 1997 ( Article 50 ), Reports 1997-IV, p. 1299, § 24). It notes, however, that the applicants received FRF 57,187 in legal aid paid by the Council of Europe. As to non-pecuniary damage, the Court notes that, unlike the TBKP, the SP's constitution and programme were approved by the Constitutional Court and the party was active for four years before being dissolved by it. Mr Perinçek and Mr Kırıt therefore sustained definite non-pecuniary damage. Making its assessment on an equitable basis, the Court assesses that damage at FRF 50,000 each. C. Default interest 68. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 3.36% per annum. | The Court found a violation of Article 11 of the Convention. It noted that statements by the party’s former chairman had referred to the right to self-determination of the “Kurdish nation” and its right to “secede”. However, read in their context, the statements did not encourage secession from Turkey but sought to emphasise that the proposed federal system could not come about without the Kurds’ freely given consent, which should be expressed through a referendum. In the Court’s view, the fact that such a political programme was considered incompatible with the principles and structures of the Turkish State at the time did not make it incompatible with the rules of democracy. It was of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that called into question the way a State was currently organised, provided that they did not harm democracy itself. |
329 | Demonstrators | II. RELEVANT LAW AND PRACTICE A. Domestic legislation on freedom of assembly 1. Constitutional guarantees 13. Article 34 of the Constitution provides : “ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ... The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law. ” 2. The Demonstrations Act 14. At the material time section 10 of Law no. 2911 on assemblies and marches was worded as follows : “ In order for a meeting to take place, the governor ’ s office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board ... ” 15. Section 22 of the same Act prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares must comply with security instructions and not disrupt individuals ’ movement or public transport. Finally, section 24 provides that demonstrations and processions which do not comply with the provisions of this Act will be dispersed by force on the order of the governor ’ s office and after the demonstrators have been warned. B. Opinion of the Venice Commission 16. The European Commission for Democracy through Law ( the Venice Commission) at its 64 th plenary session (21-22 October 2005) adopted an opinion interpreting the OSCE/ODHIR guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings. It set out its approach in this area, particularly with regard to advance notice of demonstrations in public places. “ 29. Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right. In fact, in several European countries such regimes do exist. The need for advance notice generally arises in respect of certain meetings or assemblies – for instance, when a procession is planned to take place on the highway, or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have (for instance, of regulating traffic) to obstruct the event. ” However, the Venice Commission clearly emphasised that the regime of prior notification must not in any circumstances indirectly restrict the right to hold peaceful meetings by, for instance, providing for too detailed and complicated requirements, or imposing too onerous procedural conditions ( paragraph 30 of the opinion ). C. International regulations on the use of “tear gas” 17. Under Article I § 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 ( “the CWC”), each State Party undertakes not to use riot control agents as a method of warfare. Tear gas or so-called “pepper spray” are not considered chemical weapons (the CWC contains an annex listing the names of prohibited chemical products ). The use of such methods is authorised for the purpose of law enforcement, including domestic riot control ( Article II § 9 ( d ) ). Nor does the CWC state which State bodies may be involved in maintaining public order. This remains a matter for the sovereign power of the State concerned. The CWC entered into force with regard to Turkey on 11 June 1997. 18. It is recognised that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging ( haemorrhaging of the suprarenal gland ). THE LAW I. AS TO THE ADMISSIBILITY 19. The Court considers, in the light of the parties ’ submissions, that this part of the application raises complex issues of fact and law which require examination on the merits; accordingly, it cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. As no other ground for declaring it inadmissible has been established, the Court declares the remainder of the application admissible. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 20. The applicant complained that a tear gas, known as “pepper spray”, had been used to disperse a group of demonstrators, provoking physical unpleasantness such as tears and breathing difficulties. She relied on Article 3 of the Convention, which provides : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 21. The Government noted that the gas used to disperse the demonstrators complied with health requirements and with international conventions. They explained that the gas used was Oleoresin Capsicum (OC), known as “pepper spray”, and submitted an expert report on this product. They also noted that the applicant had not submitted any medical report as evidence of possible ill -effects caused by the gas. 22. The applicant contested the Government ’ s argument. 23. The Court reiterates that, according to its case-law, ill - treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. Treatment is considered to be “inhuman” if, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. Furthermore, in considering whether a 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, inter alia, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). 24. The Court will examine the facts in the light of its well-established case-law ( see, among several other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; Klaas v. Germany, 22 September 1993, § 30, Series A no. 269; and Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV). 25. The Court will first examine the issue of the use of “pepper spray”. It notes that this gas, used in some Council of Europe member States to keep demonstrations under control or to disperse them in case they get out of hand, is not among the toxic gases listed in the Annex to the CWC. However, it notes that the use of this gas may produce side-effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of tear ducts and eyes, spasms, thoracic pain, dermatitis or allergies ( see paragraph 18 above ). 26. However, the Court observes that the applicant did not submit any medical reports to show the ill-effects she had suffered after being exposed to the gas. The applicant, who had been released shortly after being arrested, had not asked for a medical examination either ( see Kılıçgedik v. Turkey (dec.), no. 55982/00, 1 June 2004). In short, there is no shred of evidence to substantiate her allegations of treatment contrary to Article 3 of the Convention. 27. The Court therefore holds that there has been no violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 28. The applicant complained of an infringement of her right to freedom of expression and of assembly, in that the demonstration and the reading of a press statement, scheduled for the end of the event, had been prohibited by the police. The Court points out that, in its partial decision on the admissibility of the application, it stated its intention to examine these complaints 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 ... 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 prevention of disorder or crime ... or for the protection of the rights and freedoms of others. ...” 29. The Government submitted that the meeting in question had been organised unlawfully in that no advance notification had been sent to the relevant authorities. They pointed out that the second paragraph of Article 11 imposed limits on the right of peaceful assembly in order to prevent disorder. 30. The Court notes at the outset that there is no dispute as to the existence of an interference in the applicant ’ s right of assembly. This interference had a legal basis, namely section 22 of Law no. 2911 on assemblies and marches, and was thus “prescribed by law” within the meaning of Article 11 § 2 of the Convention. There remains the question whether the interference pursued a legitimate aim and was necessary in a democratic society. 1. Legitimate aim 31. The Government submitted that the interference pursued legitimate aims, including the prevention of disorder and protection of the rights of others. 32. The Court considers that the disputed measure may be regarded as having pursued at least two of the legitimate aims set out in paragraph 2 of Article 11, namely the prevention of disorder and the protection of the rights of others, specifically the right to move freely in public without restriction. 2. Necessary in a democratic society 33. In the Government ’ s opinion, the applicant had taken part in a demonstration, held in a public square without prior notification and contrary to the relevant domestic legislation. They also noted that, together with other demonstrators, the applicant had not complied with the order to disperse. In those circumstances, and taking into account the margin of appreciation afforded to States in this sphere, the Government considered that the risk of disruption to civilians who were in the park at a busy time of day and the demonstrators ’ resistance justified the dispersal of the gathering in question. In their opinion, the police intervention had been a necessary measure within the meaning of the second paragraph of Article 11 of the Convention. 34. The applicant alleged that the police had intervened without waiting for the public statement to be read out, on the pretext that the meeting was disrupting public order. 35. The Court refers in the first place to the fundamental principles underlying its judgments relating to Article 1 1 ( see Djavit An v. Turkey, no. 20652/92, §§ 56 ‑ 57, ECHR 2003 ‑ III; Piermont v. France, 27 April 1995, §§ 76 ‑ 77, Series A no. 314; and Plattform “ Ärzte für das Leben ” v. Austria, 21 June 1988, § 32, Series A no. 139 ). It is clear from this case-law that the authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens. 36. The Court also notes that States must not only safeguard the right to assemble peacefully but also refrain from applying unreasonable indirect restrictions upon that right. Finally, it considers 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 ( see Djavit An, cited above, § 57 ). 37. As a preliminary point, the Court considers that these principles are also applicable with regard to demonstrations and processions organised in public areas ( see Djavit An, cited above, § 56). It notes, however, that it is not contrary to the spirit of Article 11 if, for reasons of public order and national security, a priori, a High Contracting Party requires that the holding of meetings be subject to authorisation and regulates the activities of associations ( see Djavit An, cited above, §§ 66 ‑ 67 ). 38. Having regard to the domestic legislation, the Court observes that no authorisation is required for the holding of public demonstrations; at the material time, however, notification was required seventy-two hours prior to the event. In principle, regulations of this nature should not represent a hidden obstacle to the freedom of peaceful assembly as it is protected by the Convention. It goes without saying that any demonstration in a public place may cause a certain level of disruption to ordinary life and encounter hostility; this being so, it is important that associations and others organising demonstrations, as actors in the democratic process, respect the rules governing that process by complying with the regulations in force. 39. The Court considers, in the absence of notification, the demonstration was unlawful, a fact that the applicant does not contest. However, it points out that an unlawful situation does not justify an infringement of freedom of assembly ( see Cisse v. France, no. 51346/99, § 50, ECHR 2002 ‑ III). In the instant case, however, notification would have enabled the authorities to take the necessary measures in order to minimise the disruption to traffic that the demonstration could have caused during rush hour. In the Court ’ s opinion, it is important that preventive security measures such as, for example, the presence of first-aid services at the site of demonstrations, be taken in order to guarantee the smooth conduct of any event, meeting or other gathering, be it political, cultural or of another nature. 40. It appears from the evidence before the Court that the group of demonstrators was informed a number of times that their march was unlawful and would disrupt public order at a busy time of day, and had been ordered to disperse. The applicant and other demonstrators did not comply with the security forces ’ orders and attempted to force their way through. 41. However, there is no evidence to suggest that the group in question represented a danger to public order, apart from possibly disrupting traffic. There were at most fifty people, who wished to draw attention to a topical issue. The Court observes that the rally began at about 12 noon and ended with the group ’ s arrest within half an hour. It is particularly struck by the authorities ’ impatience in seeking to end the demonstration, which was organised under the authority of the Human Rights Association. 42. In the Court ’ s view, where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance. 43. Accordingly, the Court considers that in the instant case the police ’ s forceful intervention was disproportionate and was not necessary for the prevention of disorder within the meaning of the second paragraph of Article 11 of the Convention. 44. There has accordingly been a violation of that provision. IV. 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 1, 190. 83 euros (EUR) in respect of pecuniary damage for having been prevented from working for six hours on the day of the demonstration and EUR 20, 000 in respect of the non-pecuniary damage which she alleged she had sustained. 47. The Government contested these amounts. 48. The Court finds no causal link between the violation found and the pecuniary damage alleged, and dismisses this claim. In addition, with regard to the non-pecuniary damage, it considers that the applicant is sufficiently compensated by the finding of a violation of Article 11 of the Convention. B. Costs and expenses 49. The applicant also claimed EUR 8, 051. 77 for the costs and expenses incurred before the Court. 50. The Government considered that sum exorbitant. 51. According to the Court ’ s 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 by the applicant and are reasonable as to quantum ( see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999 ‑ II ). In this connection, it notes that the applicant has not furnished any evidence in support of the costs and expenses incurred. It remains the case, however, that preparation of the instant judgment necessarily incurred certain costs. Accordingly, ruling on an equitable basis, the Court considers it reasonable to award the applicant EUR 1, 0 00 under this head. 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 no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that there was no evidence to substantiate the applicant’s allegations of ill-treatment. It first noted that pepper spray was used in some Council of Europe member States to keep demonstrations under control or to disperse them in case they got out of hand. It was not among the toxic gases listed in the Annex to the CWC (1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction). However, the Court pointed out that the use of this gas could produce side-effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of tear ducts and eyes, spasms, thoracic pain, dermatitis or allergies. In the present case, the Court observed that the applicant had not submitted any medical reports to show the ill-effects she had suffered after being exposed to the gas. Since she had been released shortly after being arrested, she had not asked for a medical examination either. |
970 | Internet | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Proceedings for contempt of court 44. In England, contempt of court may occur in a number of different ways, sometimes under common law and sometimes based on a statutory provision. It may be a civil or a criminal offence. 45. The applicable procedure for contempt of court proceedings was at the relevant time set out in Order 52 RSC at Schedule 1 of the Civil Procedure Rules. Rule 1 of the Order provided in so far as relevant: “(1) The power of the High Court or Court of Appeal to punish for contempt of court may be exercised by an order of committal. (2) Where contempt of court– (a) is committed in connection with– ... (ii) criminal proceedings, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court; ... ... then ... an order of committal may be made only by a Divisional Court of the Queen ’ s Bench Division.” 46. Rule 2 required that permission be sought before an application was made to the Divisional Court. B. Relevant case-law on contempt of court 1. Attorney-General v. Newspaper Publishing Plc [1987] 3 WLR 942 47. The case arose in the context of proceedings to prevent a former officer of the British Secret Services from publishing confidential information in his memoirs. Injunctions were granted to prevent two newspapers from publishing excerpts pending trial, but the excerpts were published by others newspapers. A question arose as to whether the newspapers had the requisite “intent” to impede or prejudice the administration of justice. The Court of Appeal explained: “Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor.” 2. Attorney-General v Sport Newspapers Ltd [1991] 1 WLR. 1194 48. The case concerned the publication by a newspaper of details of the previous convictions of an absconded suspect in a murder investigation, despite a prior warning from the police that any such publication was likely to prejudice future criminal proceedings. The Divisional Court explained that a common law contempt was committed if there was publication of an article which caused a real risk of prejudice to the due administration of justice and it had been published with the specific intent to cause such a risk to the administration of justice. 3. R. v. Schot and Barclay [1997] 2 Cr. App. R. 383 49. The case concerned proceedings for contempt of court brought against two jurors who had been identified by the jury as having declined to reach a verdict against the accused for personal reasons. The trial judge found both jurors guilty of contempt, holding that they had intentionally disrupted the entire trial by their refusal to reach a verdict. The finding was later overturned by the Court of Appeal. The court explained: “[C]ontumacious refusal to reach a verdict because of reluctance to judge another person, may, in an appropriate case, establish the actus reus of contempt, though it may be difficult or impossible to prove. The mens rea, namely an intention to impede or create a real risk of prejudicing the administration of justice, must also be proved ... This can be established by foreseeability of consequence. But the judge in the present case does not appear to have given any consideration to this, save to say ‘ both of them in their own way have intentionally disrupted the entire trial by their refusal ’. In the light of Barclay ’ s evidence that she did not want to disrupt the court ’ s process or be disrespectful towards the court, and Schot ’ s evidence that she wanted, or had tried, to reach a verdict, this is a difficult conclusion to sustain in the absence of any finding by the judge that he rejected that evidence ...” 4. Attorney General v. Fraill and Sewart [2011] EWCA Crim 1570 50. Following acquittal verdicts in respect of one of the defendants in a criminal trial (Ms Sewart), and while the deliberations were continuing in respect of other defendants and charges, one of the jurors (Ms Fraill) contacted Ms Sewart on Facebook, a social networking site. They had a conversation over that site. It later emerged that Ms Fraill had also researched one of the defendants on the Internet. Contempt of court proceedings were subsequently brought against Ms Fraill and Ms Sewart. 51. Ms Fraill pleaded guilty to contempt of court. In its judgment handed down on 16 June 2011, shortly before the present applicant commenced her jury service, the Divisional Court said that there was nothing new about the proposition that a juror may be in contempt of court. Referring to the obligation of jurors to swear an oath to “give true verdicts according to the evidence”, the court described as “elementary” the conclusion that a verdict not given by each juror conscientiously in accordance with her assessment of the evidence at trial constituted a breach of that promise. The court emphasised that the jury ’ s deliberations, and ultimately their verdict, had to be exclusively based on the evidence given in court, a principle which applied as much to communication with the Internet as it did to discussions by members of the jury with individuals not on the jury. Information provided by the Internet was not evidence and its use by a juror exposed her to the risk of being influenced. This, the court explained, offended “our long held belief that justice requires that both sides in a criminal trial should know and be able to address or answer any material (particularly material which appears adverse to them) which may influence the verdict”. 52. The court noted: “35. Fraill is, as she has admitted, guilty of contempt of court because as a juror she communicated with Sewart via the internet and conducted an online discussion about the case with her when the jury deliberations had not been completed and verdicts had not been returned. During the course of the discussion she provided Sewart with information about the state of the jury ’ s deliberations. This conduct contravened the provisions of section 8 of the [Contempt of Court Act] 1981 ... and disobeyed the clear and unequivocal series of directions given by the trial judge prohibiting such conduct. She was also guilty of contempt of court for conducting research on the internet into the defendants in the criminal trial in which she was sitting as a juror for the purpose of obtaining further information of possible relevance to the issues at trial.” 5. Attorney General v. Davey and Beard [2013] EWHC Admin 2317 53. Mr Davey had posted a Facebook message which set out his view about the case he was trying and Mr Beard had conducted research on the Internet. In its judgment of 29 July 2013, the Divisional Court said: “2. The law in relation to proof of contempt at common law is well settled. First the Attorney General must prove to the criminal standard of proof that the respondent had committed an act or omission calculated to interfere with or prejudice the due administration of justice; conduct is calculated to interfere with or prejudice the due administration of justice if there is a real risk, as opposed to a remote possibility, that interference or prejudice would result: see Attorney General v Times Newspapers Ltd [1992] 1 AC 191; Attorney General v Times Newspapers Ltd [1974] AC 273. 3. Second an intent to interfere with or prejudice the administration of justice must also be proved ... ” 54. The Court referred to the findings of the Divisional Court in the applicant ’ s case and continued: “Lord Judge CJ set out at paragraph 38 four elements which would ordinarily establish the two elements of contempt in cases where there had been deliberate disobedience to a judge ’ s direction or order. i) The juror knew that the judge had directed that the jury should not do a certain act. ii) The juror appreciated that that was an order. iii) The juror deliberately disobeyed the order. iv) By doing so the juror risked prejudicing the due administration of justice.” C. Law Commission report on contempt of court 55. In its report no. 340 on Contempt of Court (1) Juror Misconduct and Internet Publications, published on 9 December 2013, the Law Commission identified problems with the law and procedure for dealing with jurors who sought extraneous information about the case that they were trying. It noted that the relevant conduct was treated as contempt because it was a breach of the order made by the judge at the start of the trial instructing jurors not to undertake research into the case, but that there was no specific form of words that judges had to use. As a consequence, the scope of the criminal contempt depended on the exact wording that each judge adopted in warning the jurors at the start of the trial. Further, while the prohibition on searching for extraneous material was explained to jurors as forbidden because it was “a contempt of court”, the Law Commission doubted whether, from the point of view of a layperson, it was obvious what “a contempt ” was or what the implications of this were. It considered that the message would be clearer for jurors if they were told that such conduct was a crime. Finally, the Law Commission pointed to doubt whether extraneous research by jurors was a contempt by its own nature or only because it was a breach of the directions given by the judge. This, the Law Commission said, was a further source of confusion. It continued: “3.20 We consider that providing consistency in the prohibitions on juror misconduct, with the subsequent sanction for breach, is best done by legislation rather than by standardised court orders. The creation of criminal offences by statute allows the terms of the offence to be debated in Parliament. It allows the legislature to set down with clarity the elements of the offence, and to debate publicly the mischief which the offence seeks to address. The Parliamentary process and the fact that the offence has been enshrined in statute adds to the legitimacy of any offence created and the sanction which committing the offence attracts. ” 56. Following the recommendations of the Law Commission, the Criminal Justice and Courts Act 2015 was enacted. That Act amended the Juries Act 1974 to make it an offence for a juror to conduct research into a case on which he is sitting as a juror and to disclose such research to other jury members (sections 20A and 20B of the 1974 Act). The modifications took effect from 13 April 2015. THE LAW I. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION 57. The applicant complained under Article 6 §§ 1 and 3 (a) of the Convention about the alleged failure to particularise the offence until judgment was given and to inform her promptly of the nature and cause of the contempt application. Under Article 7 she complained that she was found guilty of a criminal offence on account of an act which did not constitute a criminal offence at the time when it was committed. 58. The Court is master of the characterisation to be given in law to the facts of the case. It considers that these complaints essentially cover the same ground and finds it appropriate to examine the applicant ’ s allegations solely under Article 7 § 1 of the Convention, which reads as follows: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 59. The Government contested the applicant ’ s arguments. A. Admissibility 60. The Court is satisfied that the complaint raises arguable issues under Article 7 § 1 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 ’ observations (a) The applicant 61. The applicant emphasised that sufficient accessibility and precision of the criminal law was a key principle of Article 7. Although that Article did not prevent the clarification or adaptation of existing law, it required that the interpretation of the law conform to the principle of reasonable certainty. The test for contempt of court at common law was clear: it required specific intent to impede, or create a risk of prejudicing, the due administration of justice. The application, in her case, of a test which required only “deliberate disobedience of a direction by the judge” and creating a risk to the due administration of justice was a separate and distinct test which, she argued, equated with a “breach - of - an - order” test. She argued that Order 52 expressly excluded the jurisdiction of the Divisional Court in cases where contempt was committed in connection with criminal proceedings and the alleged contempt was in breach of an order. She considered that the Government ’ s submissions did not adequately address the distinction between specific intent and basic intent, but rather elided “specific intent” with the deliberate disobedience of a court order and did not explain how such a change in the law was compliant with Article 7. 62. The applicant rejected the Government ’ s claim that her counsel had agreed to the formulation of the test by the Divisional Court. She emphasised that her case from the first had been that the “specific intent” test was the law, and she had not agreed to any revised test. In her submission, the whole exchange between her counsel and the court had to be taken into account: on a proper reading of this exchange there was not agreement to a different test (see paragraphs 30 - 34 and 39 - 40 above). In any case it was wrong to suggest that counsel had the authority to agree a course which compromised a person ’ s human rights. 63. The applicant further considered that for a finding of contempt of court for breach of an order to comply with Article 7, the order had to be lawful, clear and unambiguous. In particular, the nature of the contempt had to be defined with precision. Oral directions to the jury formulated on a case-by-case basis lacked consistency. Since Internet use varied widely, there was a need for a clear definition of what was permitted. In her case, there were several possible interpretations of the direction or order. The words “go on the internet”, used in the judge ’ s direction (see paragraph 11 above), were not adequately defined. She further argued that a penal warning was necessary because it was not clear which directions, if breached, could attract a criminal penalty and which would not. The reference to the “severe problems” of a juror who had done so was equally insufficient to meet the requirements of an order with a penal notice. An oral direction to persons unfamiliar with court procedure required simplicity and considerable clarity to be properly understood. 64. The applicant concluded that the interference with her rights was not in accordance with the law. For the Divisional Court to move to a “breach - of - an - order” test in these circumstances was not foreseeable, even with legal advice, since it was unprecedented, it removed constituent elements of the offence which essentially changed its legal character, the test had not been applied since her case and it had led to an extensive construction of the law to her detriment. In developing the law by application and interpretation in a common law system, the court ’ s law-making function had not remained within reasonable limits. (b) The Government 65. The Government accepted that Article 7 § 1 was applicable in the present case since the contempt of court was criminal in nature and the applicant ’ s committal by the Divisional Court amounted to a finding that she was guilty of a criminal offence for the purposes of that Article. 66. In finding the applicant guilty of contempt of court at common law, the Divisional Court had applied well-established law. The applicant, in complaining that it had formulated a new test of liability, had mischaracterised and misunderstood the domestic judgment and domestic law. In particular, the court had applied the well-established mental element required, namely an intent to impede or prejudice the due administration of justice. It had merely reformulated the law to the specific facts of the applicant ’ s case. The nature of the order in her case was a prohibition on doing an act which was inherently and inevitably prejudicial to the fairness of the proceedings, prejudicial to the administration of justice and contrary to the jury oath or affirmation. In these circumstances, the question whether the applicant had intended to prejudice the administration of justice was indistinguishable from the question whether she had deliberately disobeyed the order of the court. Her counsel had agreed that there was no distinction between these two questions (see paragraphs 32 - 34 above). The approach of the court was uncontroversial : it was the approach that the Divisional Court had previously taken in Fraill (see paragraphs 50 - 52 above ); it was supported by the Supreme Court in the applicant ’ s case when refusing permission to appeal (see paragraph 42 above); and it was clear from the subsequent case of Davey and Beard (see paragraphs 53 - 54 above) that, in the applicant ’ s case, the court had done nothing more than find that the requisite intent had been proved by reference to the particular issues in her case. Even if it were possible to formulate an academic argument that there was a distinction between proof of deliberate disobedience of the judicial order and proof of an intent to impede or prejudice the due administration of justice, the application of the former test would not violate Article 7. Liability based on disobedience of such an order was obviously foreseeable, having regard to the fact that it had a foundation in domestic case-law, including in the Fraill judgment (see paragraph 50 - 52 above). 67. The Government further disputed the suggestion that there was a lack of clarity in the judge ’ s direction. The clarity of the direction was a matter of fact and had been determined by the Divisional Court, which had found that the jury had been directed in “unequivocal terms” not to seek information about the case from the Internet. It had also held that the judge ’ s direction was an order and that the applicant ’ s disobedience of it was deliberate. The prohibition imposed by the judge was consistent with the information given by the jury officer, the written notices in the jury room and the applicant ’ s oath or affirmation. The Divisional Court did not believe the applicant ’ s claim that there was a lack in clarity in her mind as to the order and concluded that she had understood its scope “perfectly well” (see paragraph 37 above). The fact that the order was not in writing and did not contain a penal warning was irrelevant. 68. Finally, it was also irrelevant for the purposes of domestic law and for the purposes of any analysis under Article 7 whether the prohibition imposed by the judge was characterised as a direction, an order or both. First, as matter of domestic law, there was no doubt that Internet research by a juror in disobedience of a direction given by a judge constituted contempt of court. Second, as a matter of domestic law, the meaning of “direction” and “order” depended on the context and both could mean the same. Third, the Divisional Court had held that in the context of the applicant ’ s case the judge ’ s direction was an order and that the applicant appreciated that it was an order (see paragraph 37 above). 2. The Court ’ s assessment (a) The general principles 69. Article 7 should be construed and applied in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Among its guarantees, it lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment. It follows that offences must be clearly defined by law. When speaking of “law”, Article 7 implies qualitative requirements, notably those of accessibility and foreseeability. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts ’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable (see Del Río Prada v. Spain [GC], no. 42750/09, §§ 77-80 and 91, ECHR 2013; S.W. v. the United Kingdom, 22 November 1995, §§ 34-35, Series A no. 335 ‑ B; and C.R. v. the United Kingdom, 22 November 1995, §§ 32-33, Series A no. 335-C ). 70. The progressive development of criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the United Kingdom. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Del Rio Prada, cited above, §§ 9 2 -93; S.W., cited above, § 3 6; and C.R., cited above, § 34). 71. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. It is not the task of this Court to substitute itself for the domestic courts as regards the assessment of the facts and their legal classification, provided that these are based on a reasonable assessment of the evidence. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention ( see Rohlena v. the Czech Republic [GC], no. 59552/08, § 51, ECHR 2015). (b) The application of the general principles to the facts of the case 72. The applicant contested the accessibility and foreseeability of the law of contempt of court in her case. There is no dispute between the parties as to the correct test for common law contempt of court. The test required, in particular, that two elements be present: first, there had to be an act which created a “real risk” of prejudice to the administration of justice; and second, there had to be an intention to create that risk (see paragraphs 27 and 29 above). It is true that, in its summary of the test, the Divisional Court omitted the word “real” from its description of the risk (see paragraph 32 above). However, it subsequently held that the applicant had caused “actual prejudice” to the due administration of justice, and not merely a risk of such prejudice (see paragraph 37 above). It is not, therefore, arguable that the Divisional Court in her case applied a lower threshold than the test required. Further, the summary of the test in the subsequent case of Davey and Beard shows that the court in the applicant ’ s case did not alter the nature of the risk which had to be demonstrated (see paragraph 54 above). 73. As to the question of intent, the Divisional Court decided that, in the circumstances of the applicant ’ s case, if it was proved that she had deliberately disobeyed the judge ’ s direction prohibiting the obtaining of extraneous information relating to the trial, an intent to impede or prejudice the due administration of justice would also have been proved (see paragraph 37 above). 74. The Court considers that it must be quite evident to any juror that deliberately introducing extraneous evidence into the jury room contrary to an order of the trial judge amounts to intending to commit an act that at the very least carries a real risk of being prejudicial to the administration of justice. In deciding that specific intent could be derived from the foreseeability of the consequences of certain actions, the Divisional Court was not replacing the specific intent test with a test of “breach of an order” or with a more basic intent test. Rather, it was finding the specific intent test to be met in the circumstances of the applicant ’ s case. This approach to proof of specific intent had clear precedent (see paragraph 47 above). While it was open to the applicant ’ s counsel to argue, as it appears that he to some extent did, that it was not appropriate to proceed in this way in her case (see paragraph 30 above), it cannot reasonably be suggested that the approach of the Divisional Court was not foreseeable, having regard to existing case-law on this question. Thus, by stating that intent could be demonstrated by the foreseeability of consequences, the court did not overstep the limits of what can be regarded as an acceptable clarification of the law. 75. The applicant also criticised the clarity of the judge ’ s direction. The Court cannot accept that the direction given by the judge, especially when taken in the context of the other information provided to the applicant by the jury officer, the notices posted around the court building and her oath or affirmation at the start of the trial (see paragraphs 8 - 10 above), was ambiguous. The jury members were clearly told, twice, that they were not to “go on the internet”. They were told not to “try and do any research of [their] own” and that, once they left the courtroom, they were not to deal with the case in any way (see paragraph 11 above). While the judge ’ s direction was in broad terms, it is not argued that the applicant understood the direction as prohibiting any use of the Internet whatsoever. Had she done so, she could have sought clarification from the trial judge. The judge further alluded to the Fraill case (see paragraphs 50 - 52 above) and warned the jurors of the severe problems which arose for a juror who went on the Internet (see paragraph 11 above). The fact that no explicit penal warning was included in the direction does not affect the clarity of the instruction given by the judge. Such a warning is not required under domestic law and had the applicant wished to know further details of the sanctions applicable to a breach of the direction, she could again have sought clarification from the judge. The consequences of contempt of court by Internet research were also made clear in the notices in the jury waiting room (see paragraph 9 above). The applicant went on the Internet to conduct research into the previous conviction of the defendant in the case in which she was sitting as a juror. On any interpretation of the judge ’ s direction, such action was clearly prohibited. 76. Finally, as to the applicant ’ s argument concerning the difference between a direction and an order, the Court considers such arguments to be untenable for the reasons given by the Divisional Court (see paragraph 37 above) and the Supreme Court (see paragraph 42 above). 77. The foregoing considerations are sufficient to enable the Court to conclude that the test for contempt of court applied in the applicant ’ s case was both accessible and foreseeable. The law-making function of the courts remained within reasonable limits: the judgment rendered in her case can be considered, at most, a step in the gradual clarification of the rules of criminal liability for contempt of court through judicial interpretation. Any development of the law was consistent with the essence of the offence and could be reasonably foreseen. 78. There has accordingly been no violation of Article 7 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 79. In the applicant ’ s submission there had been a violation of Articles 6 and 7 of the Convention and, as a consequence, her detention did not fall within the “ lawful grounds ” set out in Article 5 § 1. 80. The Court, having decided to examine the matters complained of by the applicant under Article 7 only, has found no violation of the Convention to be established. The applicant ’ s complaint under Article 5 § 1 is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. | The Court held that there had been no violation of Article 7 (no punishment without law) of the Convention. It found in particular that the test for contempt of court applied in her case had been both accessible and foreseeable. The law-making function of the courts had remained within reasonable limits and the judgment in her case could be considered, at most, a step in the gradual clarification of the rules of criminal liability for contempt of court through judicial interpretation. Any development of the law had been consistent with the essence of the offence and could be reasonably foreseen. |
250 | (Suspected) terrorists | II. Relevant domestic law and practice A. Criminal-law provisions against torture 24. The Turkish Criminal Code makes it an offence for a government employee to subject someone to torture or ill-treatment (Article 243 in respect of torture, and Article 245 in respect of ill-treatment). 25. 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 an individual to claim indemnity from the State for damage suffered by them without justification." 26. Prosecutors are under a duty to investigate allegations of serious offences which come to their attention, even if no complaint is made. However, in the state of emergency region, the investigation of criminal offences by members of the administration is taken up by local administrative councils, composed of civil servants. These councils are also empowered to decide whether or not to bring a prosecution, subject to an automatic judicial review before the Supreme Administrative Court in cases where they decide not to prosecute (Legislative Decree no. 285). B. Administrative law remedies 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." By virtue of this provision, the State is liable to indemnify any person who can prove that he has suffered damage in circumstances where the State has failed in its duty to safeguard individual life and property. C. Civil proceedings 28. Any illegal act which causes damage committed by a civil servant (except the regional or district prefects in the state of emergency region) may be the subject of a claim for compensation before the ordinary civil courts. D. The law relating to detention in police custody 29. Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a justice of the peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence. The permissible periods of detention without judicial control are longer in relation to proceedings before the State security courts. In such a case, it is possible to detain a suspect for a period of forty-eight hours in connection with an individual offence, and fifteen days in connection with a collective offence (section 30 of Law no. 3842 of 1 December 1992, re-enacting Article 11 of Decree having the force of law no. 285 of 10 July 1987). In the region under emergency rule, however, a person arrested in connection with proceedings before the State security courts may be detained for four days in the case of individual offences and thirty days in the case of collective offences before being brought before a magistrate (ibid., re-enacting section 26 of Law no. 2935 of 25 October 1983). 30. Article 19 of the Turkish Constitution gives to a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case. E. The Turkish derogation from Article 5 of the Convention (art. 5) 31. In a letter dated 6 August 1990, the Permanent Representative of Turkey to the Council of Europe informed the Secretary General of the Council of Europe that: "The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to amount to a threat to the life of the nation in the meaning of Article 15 of the Convention (art. 15). During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces. The threat to national security is predominantly occurring in provinces [i.e. Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak ] of South East Anatolia and partly also in adjacent provinces. Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful disinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law nos. 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13 (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13). A descriptive summary of the new measures is attached hereto. The issue of their compatibility with the Turkish Constitution is currently pending before the Constitutional Court of Turkey. The Government of Turkey will inform the Secretary General of the Council of Europe when the measures referred to above have ceased to operate. This notification is given pursuant to Article 15 (art. 15) of the European Convention of Human Rights." Attached to this letter was a "descriptive summary of the content of the Decrees which have the force of law nos. 424 and 425". The only measure therein described relating to Article 5 of the Convention (art. 5) was as follows: "The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Minister of the Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency ..." 32. By a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Decree no. 430 had been enacted, which limited the powers previously afforded to the Governor of the state of emergency region under Decrees nos. 424 and 425. 33. On 5 May 1992 the Permanent Representative wrote to the Secretary General that: "As most of the measures described in the decrees which have the force of Law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention (art. 5, art. 6, art. 8, art. 10, art. 11, art. 13) are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention (art. 5) only. The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention (art. 6, art. 8, art. 10, art. 11, art. 13) is no longer in effect; consequently, the corresponding reference to these Articles (art. 6, art. 8, art. 10, art. 11, art. 13) is hereby deleted from the said Notice of Derogation." PROCEEDINGS BEFORE THE COMMISSION 34. In his application of 20 May 1993 (no. 21987/93) to the Commission, Mr Aksoy complained that he had been subjected to treatment contrary to Article 3 of the Convention (art. 3) during his detention in police custody in November/December 1992; that, during the course of his detention, he was not brought before a judge or other authorised officer in violation of Article 5 para. 3 (art. 5-3); and that he was not provided with the opportunity to bring proceedings against those responsible for his ill ‑ treatment, in violation of Articles 6 para. 1 and 13 (art. 6-1, art. 13). Following Mr Aksoy ’ s death on 16 April 1994, his representatives alleged that the killing was a direct result of his application to the Commission and was an interference with his right of individual petition under Article 25 of the Convention (art. 25). 35. The Commission declared the application admissible on 19 October 1994. In its report of 23 October 1995 (Article 31) (art. 31), it expressed the opinion, by fifteen votes to one, that there had been a violation of Article 3 (art. 3) and that there had been a violation of Article 5 para. 3 (art. 5-3); by thirteen votes to three, that there had been a violation of Article 6 para. 1 (art. 6-1) and that no separate issue arose under Article 13 (art. 13); and, unanimously, that no further action need be taken in respect of the alleged interference with the effective exercise of the right of individual petition under Article 25 (art. 25). The full text of the Commission ’ s opinion and of the two separate opinions contained in the report is reproduced as an annex to this judgment [3]. FINAL SUBMISSIONS TO THE COURT 36. At the hearing, the Government invited the Court to reject the application on the ground that the available domestic remedies had not been exhausted or, in the alternative, to find that there had been no violation of the Convention. 37. On the same occasion, the applicant asked the Court to find violations of Articles 3, 5, 6, 13 and 25 of the Convention (art. 3, art. 5, art. 6, art. 13, art. 25), and to rule that these breaches had been aggravated because the measures complained of formed part of an administrative practice. He also requested just satisfaction pursuant to Article 50 of the Convention (art. 50). AS TO THE LAW I. THE COURT ’ S ASSESSMENT OF THE FACTS 38. The Court recalls its constant case-law that under the Convention system the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). While the Court is not bound by the Commission ’ s findings of fact and remains free to make its own appreciation in the light of all the material before it, it is only in exceptional circumstances that it will exercise its powers in this area (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1214, para. 78). 39. In the instant case, it must be recalled that the Commission reached its findings of fact after a delegation had heard evidence in Turkey on two separate occasions, in addition to hearings in Strasbourg (see paragraph 23 above). In these circumstances, the Court considers that it should accept the facts as established by the Commission (see, mutatis mutandis, the above ‑ mentioned Akdivar and Others judgment, p. 1214, para. 81). 40. It is thus against the background of the facts as found by the Commission (see paragraph 23 above) that the Court must examine the Government ’ s preliminary objection and the applicant ’ s complaints under the Convention. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTION A. The arguments of those appearing before the Court 41. The Government asked the Court to reject the applicant ’ s complaint under Article 3 of the Convention (art. 3) on the ground that, contrary to Article 26 of the Convention (art. 26), he had failed to exhaust the domestic remedies available to him. Article 26 (art. 26) provides: "The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken." The applicant (see paragraph 3 above), with whom the Commission agreed, argued that he had done all that could be expected of him to exhaust domestic remedies. 42. The Government contended that the rule relating to the exhaustion of domestic remedies was clearly established in international law and in the case-law of the Convention organs, and required the applicant to avail himself of all national remedies unless these clearly offered him no chance of success. In fact, Mr Aksoy could have had recourse to three different types of domestic remedy: a criminal prosecution, a civil action and/or administrative proceedings (see paragraphs 24-28 above). 43. With regard to the first of these options, they submitted that he could have complained about the alleged ill-treatment to the public prosecutor who saw him on 10 December 1992 (see paragraph 18 above). However, according to the Government, Mr Aksoy gave no indication on that occasion or at any time subsequently that he had been ill-treated during his time in police custody. Articles 243 and 245 of the Criminal Code, which were in force throughout Turkey, penalised the use of torture and ill-treatment for the extraction of confessions (see paragraph 24 above). Legislative Decree no. 285 on the state of emergency region transferred the power to carry out investigations into criminal acts allegedly committed by civil servants from the public prosecutors to the administrative councils (see paragraph 26 above). However, decisions by the administrative councils not to prosecute were always reviewed by the Supreme Administrative Court. In this connection, the Government submitted a number of judgments reversing orders made by administrative councils in the state of emergency region and ordering criminal proceedings to be brought against members of the gendarmerie and security police in respect of allegations of ill-treatment of detainees, and other rulings on sentencing for similar forms of misconduct. 44. Nonetheless, the Government reasoned that criminal proceedings were perhaps not the most appropriate remedy in this type of case, because of the emphasis placed on the rights of the accused as opposed to those of the complainant. They therefore drew the Court ’ s attention to the existence of an administrative remedy under Article 125 of the Turkish Constitution (see paragraph 27 above). In order to receive compensation under this provision, an individual needed only to show that there was a causal link between the acts committed by the administration and the wrong suffered; there was no requirement to prove serious misconduct on the part of a government agent. In this connection, the Government submitted examples of administrative decisions in which compensation had been awarded in respect of death caused by torture in police custody. 45. In addition, the Government argued that Mr Aksoy could have brought a civil action for damages. Again, they referred to a number of decisions of the domestic courts, including a judgment of the Court of Cassation in a case concerning a claim for damages for torture, where it was held that offences committed by members of the security forces were governed by the Code of Obligations and that, under Article 53 of that Code, an acquittal for lack of evidence in criminal proceedings was not binding on the civil courts. 46. While the applicant did not deny that the remedies identified by the Government were formally part of the Turkish legal system, he claimed that, in the region under emergency rule, they were illusory, inadequate and ineffective because both torture and the denial of effective remedies were carried out as a matter of administrative practice. In particular, he argued that reports by a number of international bodies showing that the torture of detainees continued to be systematic and widespread in Turkey raised questions about the commitment of the State to bringing an end to this practice. In this respect he referred to the European Committee for the Prevention of Torture ’ s Public Statement on Turkey (15 December 1992); the United Nations Committee against Torture ’ s Summary Account of the Results of the Proceedings Concerning the Inquiry on Turkey (9 November 1993); and the United Nations Special Rapporteur on Torture ’ s Report of 1995 (E/CN.4/1995/34). 47. He stated that there was a policy on the part of the State authorities of denying that torture ever took place, which made it extremely difficult for victims to succeed in receiving compensation and in having those responsible brought to justice. For example, it was now impossible for individuals alleging torture to obtain medical reports proving the extent of their injuries, because the forensic medical service had been reorganised and doctors who issued such reports were either threatened or moved to a different area. Prosecutors in the state of emergency region routinely failed to open investigations into alleged abuses of human rights and frequently refused even to acknowledge complaints. Such investigations as were carried out were biased and inadequate. Furthermore, lawyers and others who acted for the victims of human rights violations were subjected to threats, intimidation and abusive prosecutions and individuals were afraid to pursue domestic remedies because reprisals against complainants were so common. In these circumstances, the applicant claimed that he should not be required to pursue domestic remedies before making a complaint to Strasbourg. 48. In any case, he maintained that he had informed the public prosecutor on 10 December 1992 that he had been tortured (see paragraph 18 above) and asserted that, even if he had not, the prosecutor could plainly have observed that he did not have the proper use of his hands. The failure of the prosecutor to start a criminal investigation made it extremely difficult for the applicant to avail himself of any domestic remedy. It was not possible for him to take steps to ensure that a criminal prosecution was brought, for example by challenging a decision not to bring a prosecution in the administrative courts (see paragraph 26 above), because the lack of investigation meant that no formal decision not to prosecute was ever made. In addition, this failure prejudiced his chances of victory in civil or administrative proceedings, because in order to succeed with either type of claim it would have been necessary to prove that he had suffered torture, and in practice a ruling to that effect by a judge in criminal proceedings would have been required. 49. Finally, he reminded the Court that no remedy was available even in theory in relation to his complaint regarding the length of time he was detained without judicial control, since this was perfectly lawful under the domestic legislation (see paragraph 29 above). 50. The Commission was of the opinion that the applicant had been injured during his time in police custody (see paragraph 23 above). It followed that, although it was not possible to establish exactly what happened during his meeting with the public prosecutor on 10 December 1992, there must undoubtedly have been elements which should have prompted the latter to open an investigation or, at the very least, try to obtain further information about the applicant ’ s state of health and the treatment to which he had been subjected. The applicant had done all that could be expected of him in the circumstances, particularly in view of the facts that he must have felt vulnerable as a result of his detention and ill ‑ treatment and that he suffered health problems requiring hospitalisation following his release. The threats which he claimed to have received after making his application to the Commission and his death in circumstances which had not been fully clarified, were further elements which supported the view that the pursuance of remedies might have been attended by risks. In view of its finding that the applicant had done all that could be required of him to exhaust domestic remedies, the Commission decided that it was not necessary to determine whether there was an administrative practice on the part of the Turkish authorities of tolerating human rights abuses. B. The Court ’ s assessment 51. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 26 of the Convention (art. 26) obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. The rule is based on the assumption, reflected in Article 13 of the Convention (art. 13) - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1210, para. 65). 52. Under Article 26 (art. 26), 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. However, there is no obligation to have recourse to remedies which are inadequate or ineffective. In addition, according to the "generally recognised rules of international law" to which Article 26 (art. 26) makes reference, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. The rule is also inapplicable where an administrative practice consisting of a repetition of acts incompatible with the Convention and official tolerance by the State authorities has been shown to exist, and is of such a nature as to make proceedings futile or ineffective (see the above-mentioned Akdivar and Others judgment, p. 1210, paras. 66 and 67). 53. The Court emphasises that its approach to the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that Article 26 (art. 26) must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate, as well as the personal circumstances of the applicant (see the above-mentioned Akdivar and Others judgment, p. 1211, para. 69). 54. The Court notes the provision under Turkish law of criminal, civil and administrative remedies against the ill-treatment of detainees by the agents of the State and it has studied with interest the summaries of judgments dealing with similar matters provided by the Government (see paragraphs 43-45 above). However, as previously mentioned (paragraph 53), it is not here solely concerned with the question whether the domestic remedies were in general effective or adequate; it must also examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust the national channels of redress. 55. For the purposes of this examination, the Court reiterates that it has decided to accept the Commission ’ s findings of fact in the present case (see paragraphs 39-40 above). The Commission, as has been seen (in paragraph 50 above), was of the view that the applicant was suffering from bilateral radial paralysis at the time of his interview with the public prosecutor. 56. The Court considers that, even if it were accepted that the applicant made no complaint to the public prosecutor of ill-treatment in police custody, the injuries he had sustained must have been clearly visible during their meeting. However, the prosecutor chose to make no enquiry as to the nature, extent and cause of these injuries, despite the fact that in Turkish law he was under a duty to investigate (see paragraph 26 above). It must be recalled that this omission on the part of the prosecutor took place after Mr Aksoy had been detained in police custody for at least fourteen days without access to legal or medical assistance or support. During this time he had sustained severe injuries requiring hospital treatment (see paragraph 23 above). These circumstances alone would have given him cause to feel vulnerable, powerless and apprehensive of the representatives of the State. Having seen that the public prosecutor was aware of his injuries but had taken no action, it is understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels. 57. The Court therefore concludes that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies. Having reached this conclusion it does not consider it necessary to examine the applicant ’ s claim that there exists an administrative practice of withholding remedies in breach of the Convention. III. THE MERITS A. Alleged violation of Article 3 of the Convention (art. 3) 58. The applicant alleged that he was subjected to treatment contrary to Article 3 of the Convention (art. 3), which states: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Government considered the allegations of ill-treatment to be unfounded. The Commission, however, found that the applicant had been tortured. 59. The Government raised various objections to the way in which the Commission had evaluated the evidence. They pointed to a number of factors which, in their view, should have given rise to serious doubt as to whether Mr Aksoy had been ill-treated as he claimed. For example, they questioned why the applicant had made no complaint to the public prosecutor about having been tortured (see paragraph 18 above) and found it difficult to understand why, if he had indeed been subjected to torture, he had not made any inculpatory confession. They also found it suspicious that he had waited for five days between being released from police custody and contacting the hospital (see paragraph 19 above) and observed that it could not be assumed that nothing untoward had occurred in the meantime. Finally, they raised a number of points relating to the medical evidence, including the facts that the applicant took his medical records with him when he left hospital and that there was no medical evidence of burns or other marks left by the application of electric shocks. 60. The applicant complained of having been ill-treated in different ways. He claimed to have been kept blindfolded during interrogation, which caused disorientation; to have been suspended from his arms, which were tied together behind his back ("Palestinian hanging"); to have been given electric shocks, which were exacerbated by throwing water over him; and to have been subjected to beatings, slapping and verbal abuse. He referred to medical evidence from Dicle University Medical Faculty which showed that he was suffering from a bilateral brachial plexus injury at the time of his admission to hospital (see paragraph 19 above). This injury was consistent with Palestinian hanging. He submitted that the treatment complained of was sufficiently severe as to amount to torture; it was inflicted with the purpose of inducing him to admit that he knew the man who had identified him. In addition, he contended that the conditions in which he was detained (see paragraph 13 above) and the constant fear of torture which he suffered while in custody amounted to inhuman treatment. 61. The Court, having decided to accept the Commission ’ s findings of fact (see paragraphs 39-40 above), considers that 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 (art. 3) (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 40-41, paras. 108-111 and the Ribitsch v. Austria judgment of 4 December 1995, Series A no. 336, p. 26, para. 34). 62. Article 3 (art. 3), as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 34, para. 88, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, para. 79). 63. In order to determine whether any particular form of ill-treatment should be qualified as torture, the Court must have regard to the distinction drawn in Article 3 (art. 3) between this notion and that of inhuman or degrading treatment. As it has remarked before, 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 the Ireland v. the United Kingdom judgment previously cited, p. 66, para. 167). 64. The Court recalls that the Commission found, inter alia, that the applicant was subjected to "Palestinian hanging", in other words, that he was stripped naked, with his arms tied together behind his back, and suspended by his arms (see paragraph 23 above). In the view of the Court this treatment could only have been deliberately inflicted; indeed, a certain amount of preparation and exertion would have been required to carry it out. It would appear to have been administered with the aim of obtaining admissions or information from the applicant. In addition to the severe pain which it must have caused at the time, the medical evidence shows that it led to a paralysis of both arms which lasted for some time (see paragraph 23 above). The Court considers that this treatment was of such a serious and cruel nature that it can only be described as torture. In view of the gravity of this conclusion, it is not necessary for the Court to examine the applicant ’ s complaints of other forms of ill-treatment. In conclusion, there has been a violation of Article 3 of the Convention (art. 3). B. Alleged violation of Article 5 para. 3 of the Convention (art. 5-3) 65. The applicant, with whom the Commission agreed, claimed that his detention violated Article 5 para. 3 of the Convention (art. 5-3). The relevant parts of Article 5 (art. 5) state: "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 ..." 66. The Court recalls its decision in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145 ‑ B, p. 33, para. 62), that a period of detention without judicial control of four days and six hours fell outside the strict constraints as to time permitted by Article 5 para. 3 (art. 5-3). It clearly follows that the period of fourteen or more days during which Mr Aksoy was detained without being brought before a judge or other judicial officer did not satisfy the requirement of "promptness". 67. However, the Government submitted that, despite these considerations, there had been no violation of Article 5 para. 3 (art. 5-3), in view of Turkey ’ s derogation under Article 15 of the Convention (art. 15), which states: "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 (art. 15-1). 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." The Government reminded the Court that Turkey had derogated from its obligations under Article 5 of the Convention (art. 5) on 5 May 1992 (see paragraph 33 above). 1. The Court ’ s approach 68. 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 better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule 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. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation (see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A no. 258-B, pp. 49-50, para. 43). 2. Existence of a public emergency threatening the life of the nation 69. The Government, with whom the Commission agreed on this point, maintained that there was a public emergency "threatening the life of the nation" in South-East Turkey. The applicant did not contest the issue, although he submitted that, essentially, it was a matter for the Convention organs to decide. 70. The Court considers, in the light of all the material before it, that the particular extent and impact of PKK terrorist activity in South-East Turkey has undoubtedly created, in the region concerned, a "public emergency threatening the life of the nation" (see, mutatis mutandis, the Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan and McBride judgment, p. 50, para. 47). 3. Whether the measures were strictly required by the exigencies of the situation a) The length of the unsupervised detention 71. The Government asserted that the applicant had been arrested on 26 November 1992 along with thirteen others on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts (see paragraph 12 above). He was held in custody for fourteen days, in accordance with Turkish law, which allows a person detained in connection with a collective offence to be held for up to thirty days in the state of emergency region (see paragraph 29 above). 72. They explained that the place in which the applicant was arrested and detained fell within the area covered by the Turkish derogation (see paragraphs 31-33 above). This derogation was necessary and justified, in view of the extent and gravity of PKK terrorism in Turkey, particularly in the South East. The investigation of terrorist offences presented the authorities with special problems, as the Court had recognised in the past, because the members of terrorist organisations were expert in withstanding interrogation, had secret support networks and access to substantial resources. A great deal of time and effort was required to secure and verify evidence in a large region confronted with a terrorist organisation that had strategic and technical support from neighbouring countries. These difficulties meant that it was impossible to provide judicial supervision during a suspect ’ s detention in police custody. 73. The applicant submitted that he was detained on 24 November 1992 and released on 10 December 1992. He alleged that the post-dating of arrests was a common practice in the state of emergency region. 74. While he did not present detailed arguments against the validity of the Turkish derogation as a whole, he questioned whether the situation in South-East Turkey necessitated the holding of suspects for fourteen days or more without judicial supervision. He submitted that judges in South-East Turkey would not be put at risk if they were permitted and required to review the legality of detention at shorter intervals. 75. The Commission could not establish with any certainty whether the applicant was first detained on 24 November 1992, as he claimed, or on 26 November 1992, as alleged by the Government, and it therefore proceeded on the basis that he was held for at least fourteen days without being brought before a judge or other officer authorised by law to exercise judicial power. 76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual ’ s right to liberty is an essential feature of the guarantee embodied in Article 5 para. 3 (art. 5-3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the above-mentioned Brogan and Others judgment, p. 32, para. 58). Furthermore, prompt judicial intervention may lead to the detection and prevention of serious ill ‑ treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute and non- derogable terms. 77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that the United Kingdom Government had not exceeded their margin of appreciation by derogating from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control. In the instant case, the applicant was detained for at least fourteen days without being brought before a judge or other officer. The Government have sought to justify this measure by reference to the particular demands of police investigations in a geographically vast area faced with a terrorist organisation receiving outside support (see paragraph 72 above). 78. Although the Court is of the view - which it has expressed on several occasions in the past (see, for example, the above-mentioned Brogan and Others judgment) - that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture (see paragraph 64 above). Moreover, the Government have not adduced any detailed reasons before the Court as to why the fight against terrorism in South-East Turkey rendered judicial intervention impracticable. b) Safeguards 79. The Government emphasised that both the derogation and the national legal system provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited to the strict minimum required for the fight against terrorism; the permissible length of detention was prescribed by law and the consent of a public prosecutor was necessary if the police wished to remand a suspect in custody beyond these periods. Torture was prohibited by Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that any statement made in consequence of the administration of torture or any other form of ill ‑ treatment would have no evidential weight. 80. The applicant pointed out that long periods of unsupervised detention, together with the lack of safeguards provided for the protection of prisoners, facilitated the practice of torture. Thus, he was tortured with particular intensity on his third and fourth days in detention, and was held thereafter to allow his injuries to heal; throughout this time he was denied access to either a lawyer or a doctor. Moreover, he was kept blindfolded during interrogation, which meant that he could not identify those who mistreated him. The reports of Amnesty International (" Turkey : a Policy of Denial", February 1995), the European Committee for the Prevention of Torture and the United Nations Committee against Torture (cited at paragraph 46 above) showed that the safeguards contained in the Turkish Criminal Code, which were in any case inadequate, were routinely ignored in the state of emergency region. 81. The Commission considered that the Turkish system offered insufficient safeguards to detainees, for example there appeared to be no speedy remedy of habeas corpus and no legally enforceable rights of access to a lawyer, doctor, friend or relative. In these circumstances, despite the serious terrorist threat in South-East Turkey, the measure which allowed the applicant to be detained for at least fourteen days without being brought before a judge or other officer exercising judicial functions exceeded the Government ’ s margin of appreciation and could not be said to be strictly required by the exigencies of the situation. 82. In its above-mentioned Brannigan and McBride judgment (cited at paragraph 68), the Court was satisfied that there were effective safeguards in operation in Northern Ireland which provided an important measure of protection against arbitrary behaviour and incommunicado detention. For example, the remedy of habeas corpus was available to test the lawfulness of the original arrest and detention, there was an absolute and legally enforceable right to consult a solicitor forty-eight hours after the time of arrest and detainees were entitled to inform a relative or friend about their detention and to have access to a doctor (op. cit., pp. 55-56, paras. 62-63). 83. In contrast, however, the Court considers that in this case insufficient safeguards were available to the applicant, who was detained over a long period of time. In particular, the denial of access to a lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought before a court to test the legality of the detention meant that he was left completely at the mercy of those holding him. 84. The Court has taken account of the unquestionably serious problem of terrorism in South-East Turkey and the difficulties faced by the State in taking effective measures against it. However, it is not persuaded that the exigencies of the situation necessitated the holding of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in incommunicado detention without access to a judge or other judicial officer. 4. Whether the Turkish derogation met the formal requirements of Article 15 para. 3 (art. 15-3) 85. None of those appearing before the Court contested that the Turkish Republic ’ s notice of derogation (see paragraph 33 above) complied with the formal requirements of Article 15 para. 3 (art. 15-3), namely to keep the Secretary General of the Council of Europe fully informed of the measures which were taken in derogation from the Convention and the reasons therefor. 86. The Court is competent to examine this issue of its own motion (see the above-mentioned Lawless judgment, p. 55, para. 22, and the above ‑ mentioned Ireland v. the United Kingdom judgment, p. 84, para. 223), and in particular whether the Turkish notice of derogation contained sufficient information about the measure in question, which allowed the applicant to be detained for at least fourteen days without judicial control, to satisfy the requirements of Article 15 para. 3 (art. 15-3). However, in view of its finding that the impugned measure was not strictly required by the exigencies of the situation (see paragraph 84 above), the Court finds it unnecessary to rule on this matter. 5. Conclusion 87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the Convention (art. 5-3). C. Alleged lack of remedy 88. The applicant complained that he was denied access to a court, in violation of Article 6 para. 1 of the Convention (art. 6-1), which provides, so far as is relevant: "In the determination of his civil rights ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..." In addition, he claimed that there was no effective domestic remedy available to him, contrary to Article 13 of the Convention (art. 13), which states: "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." 89. The Government contended that, since the applicant had never even attempted to bring proceedings, it was not open to him to complain that he had been denied access to a court. They further argued, as they had in connection with their preliminary objection (see paragraphs 41-45 above) that there were a number of effective remedies available. 90. For the applicant, the prosecutor ’ s decision not to open an investigation had effectively rendered it impossible for him to enforce his civil right to compensation (see paragraph 48 above). He submitted that, under Turkish law, civil proceedings could not be contemplated until the facts concerning the events had been established and the perpetrators identified by a criminal prosecution. Without this, civil proceedings had no prospect of success. In addition, he stated that the ability to seek compensation for torture would represent only one part of the measures necessary to provide redress; it would be unacceptable for a State to claim that it fulfilled its obligation simply by providing compensation, since this would in effect be to allow States to pay for the right to torture. He claimed that the remedies necessary to meet his Convention claims either did not exist, even in theory, or did not operate effectively in practice (see paragraphs 46-47 above). 91. The Commission found a violation of Article 6 para. 1 (art. 6-1), for the same reasons that it found in the applicant ’ s favour under Article 26 of the Convention (art. 26) (see paragraph 50 above). In view of this finding, it did not consider it necessary to examine the complaint under Article 13 (art. 13). 1. Article 6 para. 1 of the Convention (art. 6-1) 92. The Court recalls that Article 6 para. 1 (art. 6-1) 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 (see, for example, the Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, para. 80). There can be no doubt that Article 6 para. 1 (art. 6-1) applies to a civil claim for compensation in respect of ill ‑ treatment allegedly committed by agents of the State (see, for example, the Tomasi judgment cited at paragraph 61 above, p. 43, paras. 121-22). 93. The Court notes that it was not disputed by the applicant that he could in theory have brought civil proceedings for damages in respect of his ill-treatment. He did claim that the failure of the prosecutor to mount a criminal investigation in practice meant that he would have had no chance of success in civil proceedings (see paragraph 90 above). The Court recalls, however, that because of the special circumstances which existed in his case (see paragraph 57 above), Mr Aksoy did not even attempt to make an application before the civil courts. Given these facts, it is not possible for the Court to determine whether or not the Turkish civil courts would have been able to deal with Mr Aksoy ’ s claim, had he brought it before them. In any event, the Court observes that the crux of the applicant ’ s complaint concerned the prosecutor ’ s failure to mount a criminal investigation (see paragraph 90 above). It further notes the applicant ’ s argument that the possibility of seeking compensation for torture would represent only one part of the measures necessary to provide redress (also in paragraph 90 above). 94. In the Court ’ s view, against this background, it is more appropriate to consider this complaint in relation to the more general obligation on States under Article 13 (art. 13) to provide an effective remedy in respect of violations of the Convention. 2. Article 13 of the Convention (art. 13) 95. The Court observes that Article 13 (art. 13) guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article (art. 13) is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal judgment cited at paragraph 62 above, pp. 1869-70, para. 145). The scope of the obligation under Article 13 (art. 13) varies depending on the nature of the applicant ’ s complaint under the Convention (see the above-mentioned Chahal judgment, pp. 1870-71, paras. 150-51). Nevertheless, the remedy required by Article 13 (art. 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. 96. The Court would first make it clear that its finding (in paragraph 57 above) that there existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies should not be taken as meaning that remedies are ineffective in South-East Turkey (see, mutatis mutandis, the Akdivar and Others judgment cited at paragraph 38 above, pp. 1213-14, para. 77). 97. Secondly, the Court, like the Commission, would take judicial notice of the fact that allegations of torture in police custody are extremely difficult for the victim to substantiate if he has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence. Furthermore, having been ill-treated in this way, an individual will often have had his capacity or will to pursue a complaint impaired. 98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture. Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an "effective remedy" entails, 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 investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a "prompt and impartial" investigation whenever there is a reasonable ground to believe that an act of torture has been committed. However, in the Court ’ s view, such a requirement is implicit in the notion of an "effective remedy" under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88). 99. Indeed, under Turkish law the prosecutor was under a duty to carry out an investigation. However, and whether or not Mr Aksoy made an explicit complaint to him, he ignored the visible evidence before him that the latter had been tortured (see paragraph 56 above) and no investigation took place. No evidence has been adduced before the Court to show that any other action was taken, despite the prosecutor ’ s awareness of the applicant ’ s injuries. Moreover, in the Court ’ s view, in the circumstances of Mr Aksoy ’ s case, such an attitude from a State official under a duty to investigate criminal offences was tantamount to undermining the effectiveness of any other remedies that may have existed. 100. Accordingly, in view in particular of the lack of any investigation, the Court finds that the applicant was denied an effective remedy in respect of his allegation of torture. In conclusion, there has been a violation of Article 13 of the Convention (art. 13). D. Alleged violation of Article 25 para. 1 of the Convention (art. 25-1) 101. The applicant alleged that there had been an interference with his right of individual petition, in breach of Article 25 para. 1 of the Convention (art. 25-1), which states: "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. 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." 102. It is to be recalled that Mr Aksoy was killed on 16 April 1994; according to his representatives, this was a direct result of his persisting with his application to the Commission. It was alleged that he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994 (see paragraph 22 above). 103. The Government, however, denied that there had been any interference with the right of individual petition. They submitted that Mr Aksoy had been killed in a settling of scores between quarrelling PKK factions and told the Court that a suspect had been charged with his murder (see paragraph 22 above). 104. The Commission was deeply concerned by Mr Aksoy ’ s death and the allegation that it was connected to his application to Strasbourg. Nonetheless, it did not have any evidence on which to form a conclusion as to the truth of this claim or the responsibility for the killing. 105. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 25 of the Convention (art. 25) that applicants or potential applicants are able to communicate freely with the Commission without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others judgment cited at paragraph 38 above, p. 1219, para. 105). 106. That being so, in the present case the Commission was unable to find any evidence to show that Mr Aksoy ’ s death was connected with his application, or that the State authorities had been responsible for any interference, in the form of threats or intimidation, with his rights under Article 25 para. 1 (art. 25-1), and no new evidence in this connection was presented to the Court. The Court cannot therefore find that there has been a violation of Article 25 para. 1 of the Convention (art. 25-1). E. Alleged administrative practice of violating the Convention 107. The applicant additionally asked the Court to rule that Articles 3, 5 para. 3, 6 para. 1, 13 and 25 para. 1 (art. 3, art. 5-3, art. 6-1, art. 13, art. 25 ‑ 1) were violated as a matter of practice in South-East Turkey, with high ‑ level official tolerance. This entailed that the Court should find aggravated violations of the Convention. 108. With reference to the reports of the international bodies cited above (paragraph 46), he argued that torture at the hands of the police was widespread in Turkey and that this had been the case for many years. The State authorities were aware of the problem but had chosen not to implement recommended safeguards. Furthermore, the victims of torture and of other human rights abuses were routinely denied access to judicial remedies in breach of Articles 6 para. 1 and 13 of the Convention (art. 6-1, art. 13) and were harassed, threatened and subjected to violence if they attempted to bring their complaints before the Strasbourg organs, contrary to Article 25 para. 1 (art. 25-1). Finally, since the domestic law permitted suspects to be detained for long periods in violation of Article 5 para. 3 (art. 5-3), this was evidence of an administrative practice of breaching that provision (art. 5-3). 109. The Court is of the view that the evidence established by the Commission is insufficient to allow it to reach a conclusion concerning the existence of any administrative practice of the violation of the above Articles of the Convention (art. 3, art. 5-3, art. 6-1, art. 13, art. 25-1). IV. Application of Article 50 of the Convention (art. 50) 110. Under Article 50 of the Convention (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 111. In his memorial the applicant claimed compensation for pecuniary damage caused by his detention and torture, consisting of medical expenses of 16,635,000 Turkish liras and loss of earnings amounting to £40 (sterling). In addition he sought non-pecuniary damages of £25,000, which, he submitted, should be increased by a further £25,000 in the event that the Court found an aggravated violation of the Convention on the grounds of administrative practice. He also requested payment of his legal fees and expenses which totalled £20,710. 112. The Government offered no comment either in its memorial or during the hearing before the Court as regards these claims. A. Damage 113. In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who has continued with the application after his son ’ s death (see paragraph 3 above), the Court has decided to award the full amounts of compensation sought as regards pecuniary and non ‑ pecuniary damage. In total this amounts to 4,283,450,000 (four thousand two hundred and eighty-three million, four hundred and fifty thousand) Turkish liras (based on the rate of exchange applicable on the date of adoption of the present judgment). B. Costs and expenses 114. The Court considers that the applicant ’ s claim for costs and expenses is reasonable and awards it in full, less the amounts received by way of legal aid from the Council of Europe which have not already been taken into account in the claim. C. Default interest 115. With regard to the sum awarded in Turkish liras, default interest is to be payable at the rate of 30% per annum, which, according to the information available to the Court, is the statutory rate of interest applicable in Turkey at the date of adoption of the present judgment. As the award in respect of costs and expenses is to be made in pounds sterling, the Court considers it appropriate that interest should be payable on this sum at the rate of 8% per annum, which, according to the information available to it, is the statutory rate applicable in England and Wales at the date of adoption of the present judgment. | The Court, considering that the treatment inflicted to the applicant had been of such a serious and cruel nature that it could only be described as torture, held that there had been a violation of Article 3 (prohibition of torture) of the Convention. It also found a violation of Article 5 (right to liberty and security) and a violation of Article 13 (right to an effective remedy) of the Convention in the present case. |
886 | Public or political figures | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Breach of confidence/misuse of private information 1. The Human Rights Act 1998 (“the HRA”) 83. Section 2(1) of the HRA provides that a court or tribunal determining a question which has arisen in connection with a Convention right must take into account, inter alia, any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. 84. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A public authority includes a court (section 6(3)(a) of the HRA). 85. Section 12(4) provides that a court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to journalistic material, to (a) the extent to which the material has, or is about to, become available to the public, or it is, or would be, in the public interest for the material to be published as well as to (b) any relevant privacy code. 2. The Press Complaints Commission Code of Practice (“The PCC Code”) 86. The PCC Code provided, at the relevant time, as follows: “3. Privacy i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent. ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note - Private places are public or private property where there is a reasonable expectation of privacy ... 1. The public interest includes: i) Detecting or exposing crime or a serious misdemeanour. ii) Protecting public health and safety. iii) Preventing the public from being misled by some statement or action of an individual or organisation.. . .” 3. Breach of Confidence and Article 8 of the Convention 87. Originally the tort of breach of confidence was characterised by reference to an obligation of confidence which arose whenever a person received information he knew or ought to have known was fairly and reasonably confidential. More recently, the tort developed through the case - law so as to extend to situations where information, properly to be regarded as private information, has been misused. In principle, such a claim arises where private information has been wrongfully published and it is now well-recognised that this form of the tort of breach of confidence encapsulates the values enshrined in both Articles 8 and 10 of the Convention. The guiding principle as to what comprises an individual's private information is whether the individual had a reasonable expectation of privacy as regards the information in issue. 88. Lord Woolf CJ held as follows, as regards the balancing of the interests protected by Articles 8 and 10, in his oft-cited judgment in the Court of Appeal in the case of A v B plc ( [2003] QB 195): “4......under section 6 of the 1998 [Human Rights] Act, the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles. 5. The court is assisted in achieving this because the equitable origins of the action for breach of confidence mean that historically the remedy for breach of confidence will only be granted when it is equitable for this to happen. ... 6. The manner in which the two articles operate is entirely different. Article 8 operates so as to extend the areas in which an action for breach of confidence can provide protection for privacy. It requires a generous approach to the situations in which privacy is to be protected. Article 10 operates in the opposite direction. This is because it protects freedom of expression and to achieve this it is necessary to restrict the area in which remedies are available for breaches of confidence. There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account. ... 11(iv) ... Any interference with the press has to be justified because it inevitably has some effect on the ability of the press to perform its role in society. This is the position irrespective of whether a particular publication is desirable in the public interest. The existence of a free press is in itself desirable and so any interference with it has to be justified. ... (x) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to a liability in action for breach of confidence unless the intrusion can be justified. ... (xii) Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances. A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his or her actions will be more closely scrutinised by the media. Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media. Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion which follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media. On the difficult issue of finding the right balance, useful guidance of a general nature is provided by the Council of Europe Resolution 1165 of 1998. (xiii) In drawing up a balance sheet between the respective interests of the parties courts should not act as censors or arbiters of taste. This is the task of others.” B. Costs, conditional fee arrangements (“CFA”) and success fees 1. General 89. A successful party to litigation may only recover costs if and to the extent that a Court so orders and such questions are to be determined in accordance with the Civil Procedure Rules 1988 (“CPR”). The CPR referred to below are applicable to proceedings before the House of Lords. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ( Rule 44.3(2) of the CPR). 90. Prior to 1995, the only means of funding litigation ( apart from legal aid ) was to agree an ordinary retainer with a lawyer. CFAs were introduced for a limited range of litigation by section 58 of the Courts and Legal Services Act 1990 (“the 1990 Act”). A CFA is an agreement between a client and a legal representative which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances (for example, if successful). Further secondary legislation was necessary to allow CFAs to be adopted. The Conditional Fee Agreements Order 1995 not only brought into force CFAs but it extended the range of proceedings for which CFAs could be concluded, that range being further extended to cover all litigation apart from criminal and family proceedings by the Conditional Fee Agreements Order 1998. This position was relatively unchanged by the Access to Justice Act (“the 1999 Act”). 91. A CFA, even as initially introduced, could make provision for the payment of a percentage uplift in fees (“success fees”). A success fee provided that the amount of any fees to which it applied (base costs) could be increased by a percentage in specified circumstances (for example, if successful). Section 58(4) of the 1990 Act provides that a success fee must, inter alia, state the percentage by which the amount of the fees is to be increased and the Conditional Fee Agreements Order 2000 specified the maximum percentage uplift to be 100%. 92. The 1999 Act then inserted section 58A into the 1990 Act. This provided that an order for costs made by a court could include the success fees payable under a CFA, so that the base costs, as well as the success fees, could be recovered against an unsuccessful party. The 1999 Act also made ATE (after the event) Insurance premiums recoverable against a losing party. 93. The CPR regulate the making of costs orders and the assessment of such costs including success fees (Rule 43.2(1)(a) of the CPR). Rule 44.3 (1)-(9) sets out the general rules which govern the court's discretion to make an order for costs against a party. Rule 44.3A of the CPR provides that, at the conclusion of the proceedings to which the CFA relates, the court may make a summary assessment or order a detailed assessment of all or part of the costs ( including success fees ). Rule 44.4(2) provides that, where the amount of costs is to be assessed on the standard basis, the court will only allow costs which are proportionate to the matters in issue and that it will resolve any doubt which it may have, as to whether costs were reasonably incurred or reasonable and proportionate in amount, in favour of the paying party. Rule 44.5 provides that the court must have regard to all circumstances in deciding whether costs, assessed on a standard basis, were proportionately and reasonably incurred or were proportionate and reasonable in amount. Such circumstances must include the conduct of all the parties, the amount or value of any money or property involved; the importance of the matter to all the parties; the particular complexity of the matter or the difficulty or novelty of the questions raised; the skill, effort, specialised knowledge and responsibility involved; the time spent on the case; and the place where and the circumstances in which work or any part of it was done. 94. Costs Practice Directions supplement the CPR. Paragraph 11.5 of the Direction provides that in deciding, on a standard basis of assessment, whether the costs are reasonable and proportionate, the court will consider the amount of any additional liability (including success fees) separately from the base costs. Paragraph 11.8 requires the Court to take into account, when deciding whether the percentage uplift by which the success fee is calculated is reasonable, all relevant factors and it provides examples of such factors: the circumstances in which the costs would be payable might or might not occur (including whether the case would win); the legal representative's liability for any disbursements; and any other methods of financing the costs available to the receiving party. Paragraph 11.9 provides as follows: “A percentage increase will not be reduced simply on the ground that, when added to the base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate.” 95. A party to litigation who instructs lawyers pursuant to a CFA may, but is under no obligation to, take out ATE Insurance. 2. Relevant domestic case law on CFAs and success fees (a) Designers Guild Ltd v. Russell Williams (Textiles) Ltd. (2003] 2 Costs LR 204. 96. Paragraph 27 of the Practice Directions Applicable to Judicial Taxations in the House of Lords (adopted in March 2007) provides that notification is to be given to the opposing parties and to the Judicial Office as soon as practicable after a CFA has been entered into, and that the Taxing Officers decide questions of percentage uplift in accordance with the principles set out in the above-cited case of Designers'Guild Limited. 97. This case was the first assessment of costs for an appeal to the House of Lords involving CFAs. The appellant had been successful at first instance, had lost (unanimously) in the Court of Appeal and its appeal was allowed (unanimously) in the House of Lords. On 31 March 2003 the Taxing Officers held: “14. With regard to the solicitors'claim a success fee of 100% is sought. [ Counsel for the Appellant] produced to us the opinion of Leading Counsel prior to the CFA being entered into which put the chances of success at no more than evens. That opinion was given against a background in which the appellant company had been successful at first instance and lost in the Court of Appeal. It is quite clear that the issues were finely balanced. It is generally accepted that if the chances of success are no better than 50% the success fee should be 100%. The thinking behind this is that if a solicitor were to take two identical cases with a 60% chance of success in each it is likely that one would be lost and the other won. Accordingly the success fee (of 100%) in the winning case would enable the solicitor to bear the loss of running the other case and losing. 15. There is an argument for saying that in any case which reached trial a success fee of 100% is easily justified because both sides presumably believed that they had an arguable and winnable case. In this case we have no doubt at all that the matter was finely balanced and that the appropriate success fee is therefore 100%”. (b) Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB) 98. Eady J noted as follows: “6. The claimant ... seeks a large award of damages, including aggravated and exemplary damages, against the proprietors of The News of the World .... He is able to pursue his claim purely because [his legal representative] has been prepared to act on his behalf on the basis of a [CFA]. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which [the legal representative] does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant's solicitors including a substantial mark-up in respect of a success fee. The defendant's position is thus wholly unenviable. 7. Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called “chilling effect” or “ransom factor” inherent in the conditional fee system, which was discussed by the Court of Appeal in [ King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282]. This is a situation which could not have arisen in the past and is very much a modern development.” (c) King v Telegraph Group Ltd [Practice Note] [2005] 1 WLR 2282 99. This claimant was without financial means and had no ATE insurance. Brooke LJ noted the significant pre-action costs incurred by the claimant's solicitors which required, in turn, costs to be incurred by the defendant who also risked paying double the claimants'already significant costs. He continued: “What is in issue in this case, however, is the appropriateness of arrangements whereby a defendant publisher will be required to pay up to twice the reasonable and proportionate costs of the claimant if he loses or concedes liability, and will almost certainly have to bear his own costs (estimated in this case to be about £400,000) if he wins. The obvious unfairness of such a system is bound to have the chilling effect on a newspaper exercising its right to freedom of expression ... and to lead to the danger of self-imposed restraints on publication which he so much feared .... It is not for this court to thwart the wish of Parliament that litigants should be able to bring actions to vindicate their reputations under a CFA, and that they should not be obliged to obtain ATE cover before they do so. ... On the other hand, we are obliged to read and give effect to relevant primary and secondary legislation so far as possible in a way that is compatible with a publisher's Article 10 Convention rights .... In my judgment the only way to square the circle is to say that when making any costs capping order the court should prescribe a total amount of recoverable costs which will be inclusive, so far as a CFA-funded party is concerned, of any additional liability. It cannot be just to submit defendants in these cases, where their right to freedom of expression is at stake, to a costs regime where the costs they will have to pay if they lose are neither reasonable nor proportionate and they have no reasonable prospect of recovering their reasonable and proportionate costs if they win. If this means, ..., that it will not be open to a CFA-assisted claimant to receive the benefit of an advocate instructed at anything more than a modest fee or to receive the help of a litigation partner in a very expensive firm who is not willing to curtail his fees, then his/her fate will be no different from that of a conventional legally aided litigant in modern times. It is rare these days for such a litigant to be able to secure the services of leading counsel unless the size of the likely award of compensation justifies such an outlay, and defamation litigation does not open the door to awards on that scale today. Similarly, if the introduction of this novel cost-capping regime means that a claimant's lawyers may be reluctant to accept instructions on a CFA basis unless they assess the chances of success as significantly greater than evens (so that the size of the success fee will be to that extent reduced), this in my judgment will be a small price to pay in contrast to the price that is potentially to be paid if the present state of affairs is allowed to continue.” 3. Public consultation process on CFAs and success fees including the “Review of Civil Litigation Costs: Final Report”, of Jackson LJ, January 2010 (“the Jackson Review”) (a) Consultation prior to the Jackson Review 100. In 2003 a Consultation Paper entitled “Simplifying CFAs” was completed by the Department of Constitutional Affairs (“DCA”, whose powers were transferred to the Ministry of Justice in May 2007). The use of CFAs in defamation proceedings emerged as a controversial issue during this consultation. Several national and regional media organisations took the opportunity to raise a number of concerns about the impact of the use of CFAs in defamation proceedings. Media organisations claimed that CFAs inhibited the right to freedom of expression and encouraged unmeritorious claims. Claimants'lawyers felt that the use of CFAs in defamation proceedings had greatly widened access to justice and placed claimants on an equal footing with their opponents. 101. In the 2004 Consultation Paper “Making Simple CFAs a reality” of the DCA, media organisations reiterated the view that CFAs needed to be controlled in defamation proceedings. They stressed that funding these cases by CFAs (particularly where the claimant had significant personal wealth) impinged on the media's right to freedom of expression because the success fee could effectively double a claimant lawyer's cost. This resulted in the “ransom” or “chilling effect” that forced the media to settle claims they might otherwise fight due to excessive costs. The media also expressed concerns there was no true ATE insurance market (because the very small number of cases did not ensure a competitive market), and about the failure of the costs judges to effectively control CFA costs in defamation proceedings. While the focus of the Consultation Paper had been defamation proceedings, the same problems applied in other publication cases. The 2004 Paper also noted that claimants'lawyers, on the other hand, believed that CFAs provided access to justice for all in an area of law where many would otherwise not be able to afford to seek redress. They also made the point that CFAs played an important role in discouraging irresponsible journalism. The sharp decline in the number of claims issued in this area, after the introduction of CFAs in defamation proceedings, indicated that lawyers were being more cautious when advising clients who were considering litigation. They believed that CFAs should not be banned or restricted in this area of law, but that success fees should be staged – 100% for cases going to trial and less for cases that settled early. The DCA concluded that legislation to restrict the use of success fees in this area (publication proceedings) was not planned. The DCA supported the initiative launched by the Civil Justice Council (“ CJC ”) to mediate a general agreement on success fees in this area of law and considered that the existing powers of the courts were sufficient to control costs. 102. The above-cited judgment in King and the 2004 consultation prompted media organisations and claimants'lawyer groups to try to reach an agreement on the way forward. Following the CFA round table hosted by the DCA in July 2004, both sides approached the CJC to mediate. 103. In April 2005 a previous Lord Chancellor spoke about CFAs and costs at a media society event. He called for proper control and proportionality in the costs-risks attached to publication litigation and urged claimant and media lawyers to try to find a solution through discussion. 104. In March 2006 the House of Commons Constitutional Affairs Select Committee considered the role of CFAs in defamation and privacy proceedings as part of its inquiry on the “Compensation Culture”. It felt that courts could address disproportionate costs through appropriate cost control measures such as cost - capping and that it might be appropriate for lawyers to re-assess risk (and therefore the amount of uplift) as the case progressed (staged success fees). No concrete action was taken. 105. From 2006 to 2007 the CJC hosted a number of forums including representatives from the media, legal profession and insurance. This mediation, having been suspended pending the second appeal in the present case to the House of Lords, concluded with the production of a model agreement (“the Theobalds Park Plus Agreement”) which set out a range of solutions including a range of staged success fees. 106. The Ministry of Justice agreed with the CJC's recommendations that the Theobalds Park Plus model agreement was workable and could help ensure that costs of litigation were proportionate and reasonable. The Ministry of Justice decided to consult on the issue. Through its Consultation Paper of August 2007 entitled “Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance”, the Ministry of Justice sought views on the implementation of the CJC's recommendations in publication proceedings and, notably, on a range of fixed staged recoverable success fees and on the recoverability of ATE insurance premiums. A slightly revised scheme was published with responses to the consultation in July 2008. Some responses to the consultation supported in principle the introduction of fixed recoverable staged success fees and ATE insurance premiums; however, there was no consensus on the details of the scheme. The media in particular did not support the scheme and strongly opposed its implementation and called for additional measures to address disproportionate and unreasonable costs in CFA cases. The scheme was not implemented. 107. On 24 February 2009 the Ministry of Justice published further a Consultation Paper on “Controlling costs in defamation proceedings”. The high levels of legal costs in defamation and some other publication related proceedings had been the subject of criticism and debate in the courts and Parliament. “Excessive costs may force defendants to settle unmeritorious claims, which in turn threatens a more risk averse approach to reporting and some argue is a risk to freedom of expression”. While the Government had previously consulted on proposals for a scheme of staged recoverable success fees and after the event insurance (ATE) premiums in publication proceedings to reduce unreasonable and disproportionate costs, a number of media organisations suggested additional measures that they considered necessary if costs in this area were to be maintained at reasonable levels. The Consultation Paper therefore sought views on measures to better control costs notably through limiting recoverable hourly rates; costs - capping; and requiring the proportionality of total costs to be considered on costs assessments conducted by the court. 108. As regards the question (no 6) of whether the courts should apply the proportionality test to total costs not just base costs, the Consultation Paper noted that the Government considered that “ a requirement to consider the proportionality of total costs would be a helpful tool in controlling costs in defamation proceedings ”. They would request the CPR Committee to consider amendments to the CPR and to the related practice direction. 109. As to the scope of the proposals, the Consultation Paper assumed that as a minimum the provisions would be introduced for defamation disputes (libel and slander) because it was principally in these cases that the key problems were seen to arise. However, the Paper added that there were other causes of action (such as breach of privacy) where “it may be considered they should also apply”. 110. The Consultation Paper with the responses and proposals received was published on 24 September 2009. The CPR Committee, requested to consider a number of measures to control costs in publication proceedings, proposed draft rules concerning, inter alia, additional information and control of ATE insurance. The Civil Procedure (Amendment) Rules 2009 came into force on 1 October 2009. The Government preferred to leave other matters open pending the Jackson Review. (b) The Jackson Review, January 2010 111. In late 2008 Jackson LJ was appointed to conduct a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost. 112. In January 2010 the Jackson Review was published, running to almost 600 pages plus appendices. In relation to CFAs, it noted that England and Wales differed from all other jurisdictions in having success fees payable not by the lawyer's own client but by the losing party. The benefits of CFAs had been achieved at massive cost especially in cases which were fully contested. That cost was borne by tax payers, insurance premium payers and by those defendants who had the misfortune of being neither insured nor a large, well-resourced organisation. 113. While Jackson LJ concluded that CFAs were not objectionable in themselves, he considered that there were four flaws in allowing success fees to be recovered from the losing party: “4.7 The recoverability regime does not possess either of the two crucial features of the legal aid regime which it replaces. In my view these omissions are two of its flaws. The third flaw is that the burden placed upon opposing parties is simply too great. The fourth flaw is that it presents an opportunity for some lawyers to make excessive profits. The consequence of these four flaws is to generate disproportionate costs. (a) First flaw 4.8 Any person, whether rich or poor and whether human or corporate, is entitled to enter into a CFA and take out ATE insurance. All that such a person needs to do is to find willing solicitors and willing insurers. This gives rise to anomalies and unintended consequences on a grand scale. I will give three examples in the next three paragraphs. 4.9 The tree root claims. It is, in my view, absurd that insurance companies can bring claims against local authorities using CFAs ... thereby doubling the costs burden upon council tax payers. The insurance companies can well afford to fund such litigation themselves and should do so. 4.10 Commercial claims. It is also, in my view, absurd that one party to commercial litigation can become a “super-claimant”... and thereby transfer most of the costs burden to the other party. Two arguments have been pressed upon me by defenders of recoverability in such cases: first, that recoverability enables [small and medium enterprises (“SMEs”)] to take on larger companies; secondly that the opposing party can avoid the crushing costs burden by settling early. As to the first argument, the recoverability provisions are of universal application. They are just as likely to be used by a large company against an SME as vice versa. As to the second argument ... some business disputes are evenly balanced. It is perfectly reasonable for the companies on both sides to decide to fight. It is quite wrong for one or other party to be pressurised into settling by a gross imbalance in the costs liabilities of the parties. If party A has a CFA... and party B does not, party A may be litigating at virtually no costs risk, whereas party B may face liability for quadruple costs if it loses. 4.11 Consumer dispute. County court litigation sometimes involves disputes between suppliers of goods and customers or consumers. Where such litigation is above the level of the small claims track, it is not unknown for the supplier to have a CFA and for the individual on the other side not to have a CFA. It all depends upon the terms which each party manages to agree with its own solicitors. In some cases the recoverability regime will give the consumer a “free ride” against the supplier. In other cases it will have precisely the opposite effect. It is perfectly possible for the recoverability regime to give the supplier a free ride and to expose the consumer to a massively increased costs liability. 4.12 The first flaw in the recoverability regime is that it is unfocused. There is no eligibility test for entering into a CFA, provided that a willing solicitor can be found. (b) Second flaw 4.13 The second flaw is that the party with a CFA generally has no interest in the level of costs being incurred in his or her name. Whether the case is won or lost, the client will usually pay nothing. If the case is lost, the solicitors waive their costs and pay the disbursements, in so far as not covered by ATE insurance. If the case is won, the lawyers will recover whatever they can from the other side either (a) by detailed or summary assessment or (b) by negotiation based upon the likely outcome of such an assessment. 4.14 This circumstance means that the client exerts no control (or, in the case of a no win, low fee agreement, little control) over costs when they are being incurred. The entire burden falls upon the judge who assesses costs retrospectively at the end of the case, when it is too late to “control” what is spent. (c) Third flaw 4.15 The third flaw in the recoverability regime is that the costs burden placed upon opposing parties is excessive and sometimes amounts to a denial of justice. If one takes any large block of cases conducted on CFAs, the opposing parties will end up paying more than the total costs of both parties in every case, regardless of the outcome of any particular case. 4.16 If the opposing party contests a case to trial (possibly quite reasonably) and then loses, its costs liability becomes grossly disproportionate. Indeed the costs consequences of the recoverability rules can be so extreme as to drive opposing parties to settle at an early stage, despite having good prospects of a successful defence. This effect is sometimes described as “blackmail”, even though the claimant is using the recoverability rules in a perfectly lawful way. (d) Fourth flaw 4.17 If claimant solicitors and counsel are successful in only picking “winners”, they will substantially enlarge their earnings... As the Senior Costs Judge explained... it is not possible for costs judges effectively to control success fees retrospectively. 4.18 Of course, not all lawyers are good at picking winners and some suffer losses on that account. Nevertheless, one repeated criticism of the recoverability regime which I have heard throughout the Costs Review, is that some claimant lawyers “cherry pick”. In other words they generally conduct winning cases on CFAs, they reject or drop at an early stage less promising cases and thus generate extremely healthy profits. Obviously the financial records of individual solicitors firms and barristers are confidential. Moreover, even if one such set of accounts were made public, that would tell us nothing about all the others. Nevertheless, the one point that can be made about the CFA regime is that it presents the opportunity to cherry pick. If lawyers succumb to that temptation, they will greatly increase their own earnings and they will do so in a manner which is entirely lawful. 4.19 Having worked in the legal profession for 37 years, I have a high regard for my fellow lawyers, both solicitors and counsel. The fact remains, however, that lawyers are human. As Professor Adrian Zuckerman has forcefully pointed out both during the Woolf Inquiry and during the present Costs Review, work tends to follow the most remunerative path. In my view, it is a flaw of the recoverability regime that it presents an opportunity to lawyers substantially to increase their earnings by cherry picking. This is a feature which tends to demean the profession in the eyes of the public.” 114. Specifically in relation to defamation and related claims, Jackson LJ considered that the present system was “the most bizarre and expensive system that it is possible to devise” for the following three reasons: “(i) Defendants pay a heavy price in order to ensure (a) that claimants within the CFA regime are protected against adverse costs liability and (b) that defendants can still recover costs if they win. (ii) Despite paying out large ATE insurance premiums in cases which they lose, the defendants'costs recovery in cases which they win may be only partial. This is because the defendants'costs recovery will be subject to the policy limits agreed by claimants in those cases. (iii) The present regime of recoverable ATE insurance premiums is indiscriminating. A wealthy celebrity suing a hard pressed regional newspaper publisher is fully entitled to take out ATE insurance, effectively at the expense of the defendant. The present regime provides protection against adverse costs, but it is in no way targeted upon those claimants who need such protection.” 115. As to defamation and related proceedings, Jackson LJ noted that a principal concern that had been expressed in relation to the costs of defamation proceedings and privacy cases was the widespread use of CFAs with ATE insurance, which could impose a disproportionate costs burden on defendants. He had recommended, for all civil litigation, a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party (the pre-1999 Act position): those arrangements had not suffered from the above flaws but opened up access to justice for many individuals who formerly had no such access. If that recommendation were to be adopted, Jackson LJ considered that it should go a substantial distance to ensuring that unsuccessful defendants in such proceedings were not faced with a disproportionate costs liability. However, such a measure could also reduce access to justice for claimants of slender means. To overcome this latter potential problem, he recommended complementary measures for defamation and related proceedings including increasing the general level of damages in defamation and breach of privacy proceedings by 10% and introducing a regime of qualified one way costs shifting, under which the amount of costs that an unsuccessful claimant may be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings. (c) Consultation subsequent to the “Jackson Review” (i) Report of the House of Commons Culture, Media and Sport Committee entitled “Press standards, privacy and libel”, 24 February 2010 116. In its introduction, the Report noted: “Throughout our inquiry we have been mindful of the over-arching concerns about the costs of mounting and defending libel actions, and the'chilling effect'this may have on press freedom. The evidence we have heard leaves us in no doubt that there are problems which urgently need to be addressed in order to enable defamation litigation costs to be controlled more effectively. We find the suggestion that the problem confronting defendants, including media defendants, who wish to control their costs can be solved by settling cases more promptly to be an extraordinary one. If a defendant is in the right, he should not be forced into a settlement which entails him sacrificing justice on the grounds of cost. All the evidence which we have received points to the fact that the vast majority of cases brought under a Conditional Fee Agreement (CFA) are won. We therefore see no justification for lawyers to continue to demand 100% success fees which are chargeable to the losing party. We recommend that the recovery of success fees from the losing party should be limited to no more than 10%, leaving the balance to be agreed between solicitor and client. We further recommend that the Government should make After the Event Insurance premiums irrecoverable.” 117. As regards, in particular, costs in defamation litigation, it commented: “ 263. We are aware that machinery exists for defendants to protect their position as to costs by making a payment into court. It does not appear to us that this machinery effectively protects a defendant, who genuinely attempts to settle a claim at an early stage, against a determined and deep-pocketed litigant. This is another issue which needs to be addressed by the Ministry of Justice. ... 292. Although some have suggested that CFAs should be means-tested, in practice, given the high costs involved, this would be likely to result in access to justice being limited to the extremely poor and the super rich. The complexities involved also do not lend themselves to a simple or proportionate solution. We therefore do not support the introduction of means-testing CFAs. ... 294. In the matter of success fees, the argument is made that they need to be high to compensate for the risks run by lawyers .... This view is not, however, supported by the data available on the outcomes of cases of this kind. This data suggests that CFA-funded parties win the vast majority of their cases. ... 295. This high success rate is no doubt in part the fruit of careful selection. Indeed common sense and the economic incentives would point to the inevitability of cherry-picking. ... 307. All the evidence we have heard leads us to conclude that costs in CFA cases are too high. We also believe that CFA cases are rarely lost, thereby undermining the reasons for the introduction of the present scheme. However it is vital to the maintenance of press standards that access to justice for those who have been defamed is preserved. We do not agree with the Ministry of Justice that the maximum level of success fees should be capped at 10%, nor do we believe that success fees should become wholly irrecoverable from the losing party. However we would support the recoverability of such fees from the losing party being limited to 10% of costs leaving the balance to be agreed between solicitor and client. This would address the key issue and seems to us to provide a reasonable balance, protecting access to justice, adequately compensating solicitors for the risks taken, giving claimants and their lawyers, in particular, a strong incentive to control costs and ensuring that costs to a losing party are proportionate. ... 309. ... Just as the press must be accountable for what it writes, lawyers must be accountable for the way in which cases are run, and that includes costs. The current costs system, especially the operation of CFAs, offers little incentive for either lawyers or their clients to control costs, rather the contrary. It also leads to claims being settled where they lack merit. We hope that the combined effect of our recommendations, the Ministry of Justice consultations and the conclusions of Lord Justice Jackson, will provide the impetus for a fairer and more balanced approach to costs in publication proceedings.” ( ii) “Controlling Costs in Defamation Proceedings – Reducing Conditional Fee Agreement Success Fees” (“The 2010 Consultation Paper”): CP 1 /2010 118. In January 2010 the Ministry of Justice launched a further public consultation with the above-noted Paper. It considered only the option of reducing the maximum uplift in defamation cases to 10% pending consideration of the other recommendations of the Jackson Review (the reference here to defamation including other publication cases). The executive summary of the Consultation Paper reads as follows: “The Government has for some time been concerned about the impact of high legal costs in defamation proceedings, particularly the impact of 100% success fees, which can double the costs to unsuccessful defendants in cases funded under conditional fee agreements (CFAs). CFAs have increased access to justice for claimants in making it more possible to bring cases. However, the experience over the past decade suggests that - in defamation proceedings in particular - the balance has swung too far in favour of the interests of claimants, and against the interests of defendants. The current arrangements appear to permit lawyers acting under a CFA to charge a success fee that is out of proportion to the risks involved. Aside from the cost burden this places on the opposing side, this could encourage weaker and more speculative claims to be pursued. The Government does not believe that the present maximum success fee in defamation proceedings is justifiable in the public interest. This is particularly the case because the evidence shows that many more defamation claims win than would substantiate such a generous success fee. This view is supported by Sir Rupert Jackson's report ... This consultation paper seeks views on a proposal to reduce the maximum success fee which lawyers can currently charge from 100% to 10% of the base costs. This is an interim measure for dealing with disproportionate costs while the Government considers Sir Rupert's wider proposals which seek to radically change the existing arrangements for all cases where CFAs are used. The proposal in this consultation paper would help reduce the costs for media defendants further and limit the potential harmful effect very high legal costs appear to have on the publication decisions of the media and others. This proposed change is intended to complement changes already introduced on 1 October 2009 in respect of defamation proceedings which were designed to control the costs of individual cases.” 119. The Ministry of Justice Consultation Paper of 3 March 2010 included the responses and its conclusions. It concluded as follows: “2. The Government has had particular concerns about the high costs in defamation cases. Defamation is a discrete area where we have already taken a number of steps to help control costs. Defamation proceedings are now part of a mandatory costs budgeting pilot, with Judges scrutinising costs as cases progress. 3. Lord Justice Jackson in his report ... recommends the abolition of recoverability of success fees and after the event (ATE) insurance premiums across civil litigation. Sir Rupert's report is substantial with recommendations that are far reaching with potentially widespread impact on many areas. However, it sets out a clear case for CFA reform. Even those respondents who did not support our proposal of reducing defamation success fees to 10% agree that the status quo cannot be permitted to continue. The main flaw identified by Sir Rupert of the current regime is the costs burden placed upon the opposing side. He also points out that the CFA regime was working satisfactorily before recoverability of success fees and ATE was introduced – an assertion that is made by a large number of respondents to the consultation. 4. Previous attempts to control the success fees have proved unfruitful. For example during 2007 the Department published a consultation paper, Conditional fee agreements in defamation proceedings: Success Fees and After the Event Insurance, on a scheme of fixed recoverable staged success fees and ATE insurance premiums. However, there was no consensus on the details of the scheme and it could not be implemented. No new evidence was provided to Sir Rupert against his recommendation on abolishing recoverability of success fees and ATE. 5. We carefully considered all the responses. More than half (53%) of those who responded agreed with our proposal to reduce the defamation success fees to 10%. The Government also considered the report from the Culture Media and Sport Committee on press freedom libel and privacy published on 25 February 2010. Although the Committee did not agree with our proposal it recommends that the recoverability of success fees should be capped to 10%. 6. The Government is actively assessing the implications of Sir Rupert's proposals and will also consider the Committee's report and recommendations including those on costs. However, in the meantime we are minded to implement the proposal to reduce the maximum success fee in defamation cases to 10% immediately as an interim measure. 7. We have therefore today laid the Conditional Fee Agreements (Amendment) Order before Parliament with a view to having the maximum success fee of Controlling Costs in Defamation Proceedings Summary of responses 10% in defamation cases in force as soon as possible subject to Parliamentary approval. 8. In light of the comments received, the Order has been amended to make clear that the new requirements will only apply to CFAs entered into after the date on which the Order comes into force. Defamation proceedings for the purpose of the Order means publication proceedings (within the meaning of rule 44.12B of the [CPR]) which includes defamation, malicious falsehood or breach of confidence involving publication to the public at large.” 120. The Conditional Fee Agreements (Amendment) Order was therefore laid before Parliament. However, that proposal was not maintained during the run-up to the general election in May 2010. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING BREACH OF CONFIDENCE 121. The applicant complained under Article 10 of the Convention about the finding of breach of confidence against it as regards its publication of the relevant articles. Article 10 reads, insofar as relevant, as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, ... ” A. Admissibility of the complaint 122. The Court finds that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other ground. It must therefore be declared admissible. B. The applicant's observations on the merits 123. The applicant noted that Ms Campbell accepted that she could not complain about the publication of the facts of her drug addiction and treatment because she had chosen to put into the public domain an assertion that she did not take drugs. Every domestic judge therefore considered that it was therefore in the public interest to publish those matters. 124. The core question in the domestic courts was whether the publication of three items of additional information (“the additional material”) was justified or not. The addition material impugned by the majority of the House of Lords comprised the fact that Ms Campbell was attending NA meetings, information about those NA meetings and two photographs of her outside her NA meetings. 125. The applicant preferred and relied extensively upon the dissenting judgments of Lord Nicholls and Lord Hoffman. 126. It mainly argued that the majority of the House of Lords failed to accord sufficient weight to the editor's assessment made in good faith as to how much detail to publish in order to ensure the credibility of the story, particularly in light of Ms Campbell's previous false denials of addiction and treatment, even if those details related to a medical condition. The difference between the majority and minority in the House of Lords was not a narrow point, as the Government suggested, but rather a fundamental dispute as to the circumstances warranting an interference with editorial judgment. 127. If there was no objection to publishing the fact of her addiction and treatment, there could be no objection to the publication of the details of that treatment since treatment by attendance at NA meetings was well known treatment, widely used and much respected. The treatment details and photographs were anodyne once it was accepted that it was permissible to publish the fact of her addiction and the fact that she was receiving treatment for it. These details therefore constituted a limited intrusion into her private life which could not take priority over the newspapers entitlement to assess in good faith which details to publish to support the credibility of the matters it was reporting in the public interest. Equally, the photographs were taken to illustrate articles on a matter of agreed legitimate public interest and, in any event, contained no private information beyond that already legitimately contained in the article. Moreover, given that Ms Campbell lived by publicity, she could not insist upon too great a nicety of judgment as to the circumstantial detail with which the story was presented. 128. Finally, it was impossible to see that Ms Campbell suffered any significant additional distress because of the publication of the additional material concerning her treatment. As Lord Hoffman pointed out, the impact of the publication on her continuing therapy was not pleaded domestically. 129. It was for the Court to decide if the domestic courts made errors of principle and the applicant considered that they made the above-described errors. The applicant was not suggesting that a public figure who put aspects of her private life into the public domain forfeited the protection of Article 8: rather it maintained that its publication rights and rights of editorial discretion derived from Article 10 were weightier than the private life rights of the applicant on the facts of the present case. C. Observations of the Government 130. The Government submitted that the law of England and Wales was Convention compliant as was the application of that law to the present facts. 131. A claim for breach of confidence would only succeed if the court concluded that the publication of the private information was wrongful. The notion of wrongful publication was interpreted as importing the values contained in Articles 8 and 10 of the Convention. In practice, a court was required to weigh the public interest in maintaining the confidentiality of the information in question against the countervailing public interest in publication. The context for this exercise was provided by Articles 8 and 10 of the Convention, as explained by Lord Hope (paragraph 27 above). 132. On matters of fine assessment of conflicting Convention rights and the application of settled principles to the facts of a particular case, Contracting States were entitled to a certain margin of appreciation. 133. The domestic assessments demonstrated that the balance of the Articles 8 and 10 rights in the present case was correct and indeed a narrow point. The House of Lords relied on the correct Convention principles as to how to balance Articles 8 and 10 rights: indeed, there was no difference of principle between the majority and minority of the House of Lords. The narrow point at issue between them and, consequently, in the present case was the application of those principles to the facts of the case. The majority considered, for relevant and sufficient reasons given, that details of Ms Campbell's treatment went beyond justified publication. The Government underlined that there was a clear qualitative distinction to be made between the facts that Ms Campbell was a drug addict and in treatment and the publication of details of the treatment she was receiving. The non-medical therapy clearly constituted treatment close to the core of Article 8 of the Convention: the treatment was continuing, publication of those details risked affecting her willingness or ability to continue and the publication of these additional details had no public interest. Moreover, the same reasoning applied as regards the decision by the majority of the House of Lords as regards the photographs : the decision on photographs flowed from their decision that information about the treatment details of Ms Campbell was private and that there was no public interest in its publication. 134. Accordingly, since the correct principles were identified and relevant and sufficient reasons given for their application, the House of Lords'conclusion fell within its permitted margin. The applicant simply requested this Court to ignore this margin of appreciation and to exercise a further appeal jurisdiction and to prefer the minority factual analysis over that of the majority. 135. As to the applicant's suggestion that the House of Lords accorded insufficient respect to a journalist's right to decide how much to publish to ensure credibility, the majority of the House of Lords clearly recognised the need to afford the applicant a proper margin in that respect. Having regard also to the “duties and responsibilities” of journalists, the margin to be accorded was not an unlimited one, was not out-with the supervision of the national court and was appropriate on the facts. D. The Court's assessment 136. The Court must determine whether the finding by the majority of the House of Lords of breach of confidence against the applicant constituted an interference with its right to freedom of expression. Any such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10 and, in that respect, the Court must determine whether an interference was “prescribed by law”, pursued one or more of the legitimate aims listed in that paragraph and was “necessary in a democratic society” in order to achieve that aim or aims. 1. Was there an interference prescribed by law for a legitimate aim? 137. The Court considers, and it was not disputed by the Government, that the finding of a breach of confidence against the applicant amounted to an interference with its right to freedom of expression. 138. In addition, the applicant did not contest the lawfulness of the interference, which derived from the common law tort of breach of confidentiality, nor that its aim, protecting the rights of others, was legitimate. The Court accepts that the interference was prescribed by law (paragraphs 83-88 above) and pursued the legitimate aim of protecting “ the ... rights of others” namely, Ms Campbell's right to respect for her private life. 2. Was the interference “ necessary in a democratic society”? 139. The fundamental principles relating to this question are well established in the case-law and have been summarised by the Grand Chamber as follows (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ XI): “45. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ... .” 140. A number of additional factors are particularly relevant to the Court's supervisory role in the present case. 141. In the first place, regard must be had to the pre-eminent role of the press in a State governed by the rule of law ( for example, Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996 ‑ II). Whilst it is true that the methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court, nor for the national courts, to substitute its own views for those of the press as to what technique of reporting should be adopted ( Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298), editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of the reputation of ... others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism ( Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004 ‑ XI with further references contained therein). Nevertheless it is incumbent on it to impart information and ideas on matters of public interest ( De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I). Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” ( Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239 Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III; and, more recently, Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010 ). 142. In addition, when verifying whether the authorities struck a fair balance between two protected values guaranteed by the Convention which may come into conflict with each other in this type of case, freedom of expression protected by Article 10 and the right to respect for private life enshrined in Article 8, the Court must balance the public interest in the publication of a photograph and the need to protect private life ( Hachette Filipacchi Associés v. France, no. 71111/01, § 43, ECHR 2007 ‑ VII. The balancing of individual interests, which may well be contradictory, is a difficult matter and Contracting States must have a broad margin of appreciation in this respect since the national authorities are in principle better placed than this Court to assess whether or not there is a “pressing social need” capable of justifying an interference with one of the rights guaranteed by the Convention ( Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III ). 143. Finally, the Court considers that the publication of the photographs and articles, the sole purpose of which is to satisfy the curiosity of a particular readership regarding the details of a public figure's private life, cannot be deemed to contribute to any debate of general interest to society despite the person being known to the public. In such conditions freedom of expression calls for a narrower interpretation (see, mutatis mutandis, Campmany y Diez de Revenga and Lopez Galiacho Perona v. Spain (dec.), no. 54224/00, ECHR 2000-XII; Julio Bou Gibert and El Hogar Y La Moda J.A. v. Spain ( dec.), no. 14929/02, 13 May 2003; and Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; as cited in Von Hannover v. Germany, no. 59320/00, § 65-66, ECHR 2004 ‑ VI ). Moreover, although freedom of expression also extends to the publication of photographs, this is an area in which the protection of the rights and reputation of others takes on particular importance. Photographs appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution ( Von Hannover v. Germany, cited above, at § 59. See also Hachette Filipacchi Associés v. France, cited above, § 42 ). 144. The Court has therefore examined whether the finding of a breach of confidence by the majority of the House of Lords disclosed relevant and sufficient reasons through an examination of whether the standards applied to the assessed facts were in conformity with the principles embodied in Article 10 of the Convention ( Lindon, Otchakovsky-Laurens and July v. France, cited above). 145. The Court has set out the domestic judgments in some detail and, notably, those of the majority of the House of Lords impugned by the applicant (paragraphs 25-54 above ). It observes that the majority members of the House of Lords recorded the core Convention principles and case-law relevant to the case. In particular, they underlined in some detail the particular role of the press in a democratic society and, more especially, the importance of publishing matters of public interest. In addition, and contrary to the applicant's submission, each member of the majority specifically underlined the protection to be accorded to journalists as regards the techniques of reporting they adopt and as regards decisions taken about the content of published material to ensure credibility, as well as journalists'duties and responsibilities to act in good faith and on an accurate factual basis to provide “reliable and precise” information in accordance with the ethics of journalism (citing, in particular, Jersild v. Denmark, cited above, § 31 and Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I, see paragraphs 28-29, 35, 40 and 47 above ). Moreover, the majority recorded the need to balance the protection accorded under Articles 8 and 10 so that any infringement of the applicant's Article 10 rights with the aim of protecting Ms Campbell's privacy rights had to be no more than was necessary, neither Article having a pre-eminence over the other (citing, inter alia, Resolution 1165/98 entitled “Right to Privacy” of the Parliamentary Assembly of the Council of Europe and A v B plc [2003] QB 195). Finally, the majority explained the particularly private nature of information concerning a person's treatment for drug addiction and the potential detriment resulting from its disclosure. 146. The Court further observes that all members of the House of Lords, both minority and majority, were in agreement as to these relevant principles. Lord Hope noted that the case did not raise any new issues of principle but was rather concerned with questions of “fact and degree” and Lord Hoffman emphasised that all members of the House of Lords were unanimous as to the applicable principles but were divided in their application to the narrow point related to the facts of the case (paragraphs 26 and 50 above). 147. Indeed, there was agreement at all three instances (and among all members of the House of Lords) as to the application of those principles to the main part of the published articles. They considered Ms Campbell to be an internationally known model and celebrity. Given her prior public denials of drug use, the core facts of her drug addiction and the fact that she was in treatment were legitimately a matter of public interest and capable of being published. Ms Campbell accepted this before the domestic courts, as did the parties before this Court. In making this undisputed qualitative distinction between, on the one hand, private information which Ms Campbell had already made public and which was therefore legitimately the subject of a public debate and, on the other, the additional information which she had not made public, the Court considers that all three domestic courts which examined the case reflected the same distinction underlined by this Court in the above-cited Von Hannover case decided some days after the present judgment of the House of Lords. 148. Accordingly, the difference of opinion between the judges in the national courts on which the present complaint turns, concerned only the application of relevant Convention principles to the question whether an interference with the editorial decision to publish the additional material ( the fact that she was attending NA, details about the nature of her NA treatment and covertly taken photographs outside her NA meetings ) was justified under Article 10. 149. The High Court examined this issue over 5 days and, in a detailed and lengthy judgment, found the publication of the additional material unjustified. The Court of Appeal, following a hearing of 2 days and by another detailed judgment, allowed the applicant's appeal finding the publication of the additional material to be justified. Having heard the appeal over 2 days and, each of the five members giving detailed judgments, the House of Lords found by a majority (3 to 2) that the publication of the additional material exceeded the latitude accorded to editorial assessment and was not justified. 150. Against this background, the Court considers that, having regard to the margin of appreciation accorded to decisions of national courts in this context, the Court would require strong reasons to substitute its view for that of the final decision of the House of Lords or, indeed, to prefer the decision of the minority to that of the majority of that court, as the applicant urged the Court to do. 151. Indeed, the Court considers convincing the reasons for the decision of the majority of the House of Lords. The majority underlined, inter alia, the intimate and private nature of the additional information about Ms Campbell's physical and mental health and treatment and concluded that the publication of the additional material about that treatment had been harmful to Ms Campbell's continued treatment with NA in the United Kingdom and risked causing a significant setback to her recovery as well as being considerably distressing for her. The photographs had been taken covertly with a long range lens outside her place of treatment for drug addiction and would have been clearly distressing for a person of ordinary sensitivity in her position and faced with the same publicity; the photographs had been taken deliberately with a view to inclusion in the article and were accompanied with captions which made it clear she was coming from her NA meeting thereby connecting those photographs to the private information in the articles; and those photographs allowed the location of her NA meetings to be identified. On the other hand, the publication of the additional material was found not necessary to ensure the credibility of the story, the applicant itself accepting that it had sufficient information without the additional material to publish the articles on the front page of its newspaper. Nor was it considered that there was any compelling need for the public to have this additional material, the public interest being already satisfied by the publication of the core facts of her addiction and treatment. 152. The applicant maintained that it was impossible to find that Ms Campbell suffered significant additional distress because of the publication of the additional material. However, that was precisely what the majority of the House of Lords considered to be established : whether or not the publication of that additional material prejudiced her continued treatment with NA (and see Lord Hoffman at paragraph 54 above), the majority of the House of Lords found that it had caused her some distress, Baroness Hale specifically relying on the evidence taken and findings of fact in this respect of the first instance court ( paragraph 41 above ). The relatively low award of damages of the first instance court ( restored by the majority of the House of Lords ) reflected the former court's assessment of the level of prejudice suffered. 153. Finally, it was pointed out by the applicant that the Court of Appeal found that the photographs had not been, of themselves, relied upon by Ms Campbell as a ground of complaint. However, Lord Nicholls ( paragraph 49 above ) clarified that the applicant complained that the information conveyed in the photographs was private and, further, the majority members of the House of Lords (paragraphs 32, 39 and 43 above ) found that the captions and context in which the photographs were presented, which made it clear that Ms Campbell was coming from her NA meeting at an identifiable place, inextricably linked the photographs to the impugned private additional material. Accordingly, as the Government expressed it, the decision of the House of Lords on the photographs flowed from their decision that the additional material about Ms Campbell's treatment details was private and without public interest. 154. It is indeed true that the minority of the House of Lords found that the additional material was anodyne and inconsequential, noting that it was unremarkable to add the details of Ms Campbell's treatment with NA and, further, that the photographs, of themselves, added little and were not demeaning or embarrassing, so that the publication of all of this additional material fell within the latitude to be accorded to journalists. The applicant urged the Court to prefer the opinion of the minority. 155. However, the relevancy and sufficiency of the reasons of the majority as regards the limits on the latitude given to the editor's decision to publish the additional material is such that the Court does not find any reason, let alone a strong reason, to substitute its view for that of the final decision of the House of Lords or to prefer the decision of the minority over that of the majority of the House of Lords, as the applicant urged the Court to do. 156. In such circumstances, the Court considers that the finding by the House of Lords that the applicant had acted in breach of confidence did not violate Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING RECOVERABLE SUCCESS FEES 157. The parties devoted extensive submissions to the precise nature of this complaint. The Court considers that the applicant's core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA. A. Admissibility of the complaint 158. The Government relied on the fact that the applicant did not challenge the level of the base costs of the first appeal to the House of Lords and that it had, in the end, settled all of Ms Campbell's costs'claims against it. The only ground of inadmissibility invoked by the Government in these respects was that the case was manifestly ill-founded. The Court considers it appropriate to examine these submissions on the merits of the complaint. 159. The Court therefore finds that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other ground. It must therefore be declared admissible. B. The applicant's observations 160. The applicant did not contest the base costs before the first instance court, the Court of Appeal or the House of Lords. It did not contest the use of CFAs in publication cases or in the present case. 161. The applicant's core complaint concerned, rather, the recoverability of success fees included in CFAs. In particular, it complained that the total costs order against it was excessive because it included success fees in both appeals to the House of Lords which amounted to double the amount of the base costs of those appeals in a situation where domestic courts were expressly precluded by the Costs Practice Directions ( paragraph 11.9) from controlling and reducing the total costs payable. 162. The requirement to pay the success fees of Ms Campbell's lawyers was an interference with the applicant's freedom of expression. While it was prescribed by law, it did not pursue a legitimate aim and was not necessary in a democratic society. 163. In the first place, the costs were excessive, amounting to disproportionate and punitive awards against media organisations. They were excessive by definition, being a multiple of already high base costs. Base costs in defamation and privacy cases were noticeably higher (GBP 400-500 per hour ) when compared to other equally complex civil and criminal cases before the House of Lords (GBP 140 per hour in a serious rape case). In addition, a success fee was applied which could double those already high base costs. In the present case, uplifts of 95% and 100% were accepted as appropriate and a 100% success fee in a CFA was regularly charged. Moreover, a second success fee of 95% was charged as regards the second appeal to the House of Lords challenging the first success fee, which left the applicant in an impossible position. It was, moreover, perverse that the greater the prospects of success of a defence (for example, if it was assessed at 50/50), the higher the success fee. In addition, the total costs, including success fees, were also excessive in that they bore no relationship of proportionality to the damages recovered by Ms Campbell (GBP 3,500), it being inconceivable that even wealthy claimants would pay that sum in costs for the small damages obtained. Moreover, they were excessive because the CFAs and success fee system meant that there was no incentive for a claimant's legal representatives to keep costs low. 164. Secondly, the principle was no different from the requirement of proportionality between damages for defamation and the injury suffered which was set out in Tolstoy Miloslavsky v. the United Kingdom (13 July 1995, Series A no. 316 ‑ B, § 49). The costs award to which it was subjected was excessive and, even though domestic law required base costs and the percentage success fee rate to be reasonable, the control of the level of costs awards was deficient, a matter recognised by the domestic consultation process. 165. Thirdly, this excessive burden constituted a chilling effect on the applicant as a media organisation. The financial impact of CFAs inevitably inhibited media organisations from defending claims that should be fought and put pressure on them to settle early valid claims and, further, deterred such organisations from publishing material, including material which it would be proper to publish. The applicant relied on, inter alia, statements made to the House of Commons Constitutional Affairs Select Committee (paragraph 104 above) by numerous well-known press and media organisations, which statements set out those organisations'experience of, and concerns about, success fees in publications cases. 166. Fourthly, success fees did not achieve the aim of giving impecunious but deserving claimants access to justice because there were no obligations concerning, or mechanism controlling, a lawyer's use of success fees earned in one case to take on other poor claimants with deserving cases. The domestic consultation process confirmed that access to justice for impecunious clients had not increased. The impression of many media groups was that certain solicitors conducted weak cases on an ordinary retainer and strong cases on CFAs. Since, in addition, the media rarely win publication cases, a success fee was therefore a windfall profit for lawyers and a punitive award against the media. Indeed, since there was no means of ensuring that impecunious litigants benefited, the only result of the scheme was to shift the burden of funding civil litigation from the public purse to the private sector. 167. Fifthly, allowing success fees to claimants such as Ms Campbell who could afford legal fees and were at no risk whatsoever of being denied access to justice was entirely unnecessary for the above-noted legitimate aim. Indeed, the House of Lords simply deferred to what it assumed was parliament's intention. The House of Lords failed to determine whether success fees (including for wealthy claimants) were necessary to contribute to access to litigation by impecunious litigants and, indeed, these were not factors which a judge assessing costs could take into account. The CFA system should therefore be amended to exclude wealthy claimants and means testing was possible to achieve this since the same financial eligibility for legal representation in criminal cases had been usefully employed in Magistrates Courts, which courts tried approximately 95% of criminal cases. 168. Sixthly, publication cases were sufficiently distinguishable from other civil litigation, for the CFA scheme to exclude such cases. The applicant reiterated the reasons, also outlined by Lord Hoffman at paragraph 6 7 above, as to why the CFA/success fee system had a heavier impact in publication cases compared to other cases, such as traffic cases. C. The Government's observations 169. The Government noted that the applicant did not contest the costs in the High Court and the Court of Appeal or the base costs in the House of Lords. Moreover, it did not object in the domestic courts to the use of CFAs, to costs following the event or to a costs order including a lower level success fee. The applicant's core case before this Court had become a complaint that the domestic courts were precluded from reducing the total costs payable by an unsuccessful defendant, even when they were disproportionate and excessive as a result of the success fees, given paragraph 11.9 of the Costs Practice Directions. 170. The Government considered that the Court should examine only the underlying legislative provisions (sections 58 and 58A of the 199 0 Act) namely, the overall scheme which permitted a person to enter into a CFA in practically all types of litigation with a success fee which could be recovered against an unsuccessful defendant in order to fund litigation by other persons. 171. As to whether those legislative provisions constituted an interference with the applicant's freedom of expression, the Government pointed out that the relevant provisions were permissive as to whether a CFA with success fee was concluded; as to the amount of that fee ( subject to a statutory maximum of 100% ); and, indeed, as to the making by a court of any specific form of costs order against an unsuccessful party. In any event, even if the interference of which the applicant appeared to complain may have been capable of amounting to an interference with its right to freedom of expression, it was one of a low order and was minimal. 172. The applicant had not disputed that the interference was prescribed by law and the Government clarified that the impugned costs order with success fees was based on sections 58 and 58A of the 1990 Act (inserted by the 1999 Act) and on Rule 44 of the CPR and the Costs Practice Directions. 173. The Government recalled that the purpose of allowing CFAs to be concluded was to achieve the widest public access to legal services funded by the private sector. In particular, CFAs provided a greater range of funding options to allow the widest possible range of people, including but not limited to claimants and defendants just above the means test for legal aid but not sufficiently wealthy to incur litigation costs, to have a real opportunity to have effective access to legal services and to the courts in relation to as many forms of litigation as possible. This was achieved through a fundamental re-balancing of the means of access to justice by resort to private sector funding (and hence funded indirectly by the public as a whole) rather than by the use of public (legal - aid) funds. It was intended to balance the rights of all litigants (claimants, defendants and successful or not), as well as the interests of lawyers who were expected to provide their services to the widest range of persons possible on a CFA. This allowed the State to re-allocate legal - aid resources by removing, for example, through the 1999 Act personal injuries claims from the legal - aid system, given the effectiveness of CFAs. 174. Success fees enhanced the effectiveness of the CFA and were thus an integral part of the CFA scheme. It would ensure that lawyers would provide legal services on a CFA to the widest range of persons and not just to those whose claims were the strongest. Success fees were designed to broadly reflect the overall risk undertaken by a legal representative across his range of work and thus serve a purpose beyond a single piece of litigation. “Excessive” costs in a single case were justified by the general objective. In addition, the level of the success fee had to be high enough to provide a clear incentive to legal representatives to provide services under a CFA to those whose cases were less meritorious. The level also had to be sufficiently limited so as “to afford the client with the practical opportunity to pursue or defend legal proceedings”. The maximum uplift was therefore 100%. Moreover, it was also necessary for success fees to be recoverable from the unsuccessful party. Without this possibility, the CFA would not have been useful for claimants, unless the potential value of their cases would cover the success fee and other costs leaving sufficient damages to make the claim worthwhile, or for those seeking non-monetary remedies or for defendants. 175. Promoting thereby access to justice, guaranteed by Article 6 of the Convention, was plainly a legitimate aim for the purposes of Article 10 § 2 of the Convention. 176. The Government went on to argue in some detail that recoverable success fees did not amount to a disproportionate interference with the applicant's right to freedom of expression. Contracting States were entitled to adopt rules and schemes of general application in support of social policy objectives and, in conceiving of such schemes, were required to carry out a delicate balance of a range of relevant and competing social and public interests including, as in the present case, issues under Articles 6 and 10 of the Convention. Indeed, “excessive” costs in a single case would be justified by the general objective. In these respects, they were to be afforded a significant margin of appreciation for this exercise ( Blečić v. Croatia, no. 59532/00, § 64, 29 July 2004; and Evans v. the United Kingdom [GC], no. 6339/05, § 68, ECHR 2007 ‑ IV). 177. The Government made lengthy submissions to the effect that the recovery of success fees was subject to a number of safeguards, the argument being that those safeguards struck a proper balance between the interests of unsuccessful litigants and the objective of expanding access to justice consonant with Article 6 of the Convention. 178. The first safeguard was the fixing of the maximum uplift at 100%. 179. The second safeguard was the requirement that the base costs and the success fees contained in a CFA were to be regulated by a court separately and on a case by case basis against the criterion that such amount should be no more than was reasonable and proportionate, any doubt to be resolved in favour of the paying party (Rule 44.4 of the CPR and paragraph 11 of the Costs Practice Directions ). In particular, the base costs had to be reasonable and proportionate (paragraph 11.6 of the Costs Practice Directions ) and thus were subject to assessment under Rule 44 of the CPR. A court was also required to consider whether there should be a success fee and, if so, whether the percentage uplift was reasonable (paragraph 11.7 of the Costs Practice Directions ) and paragraph 11.8 contained a non-exhaustive list of factors to which a court could have regard in so deciding. All the impugned paragraph 11.9 of the Costs Practice Directions did therefore was to acknowledge the above-described control which had already been applied to the base and success fee elements of the costs order so that a further reduction of the total costs was unnecessary. Indeed, it would be illogical to allow a double reduction of the total costs as it would imply that a court would, in the end, award base costs that were less than what was initially considered reasonable. 180. As to the applicant's suggestion that “publication cases” be excluded from the system, there was no reason to suggest that those involved in publication cases should have less access to legal services; cases against newspapers concerned important and sensitive rights'issues for which CFAs should be available; and since legal aid was never available for defamation cases, those on modest incomes could not consider bringing or defending such actions without CFAs. 181. The applicant's submission that persons such as Ms Campbell should not have access to CFAs was rejected by the House of Lords. It did not matter if her solicitors had indicated that they did little CFA work: when pursuing broad social policy objectives, a State was entitled to adopt provisions of general application so that the justification of the general scheme was not undermined by one example. As to whether entitlement to the CFA system should be means tested, the Government relied on Lord Hoffman's judgment in the second appeal and maintained that this was precisely the type of social and economic decision to which the margin of appreciation applied. There were no clear objective criteria by which one could regulate access to the CFA/recoverable success fee scheme according to the financial status of a claimant and, indeed, any attempt to draw such a line would undermine the objective of promoting wide access to legal services and would risk those falling just the wrong side of the line being significantly disadvantaged. It would also be unrealistic to expect the private sector to control financial qualifications. 182. As to the consistency between the Government's submissions to the Court and those during the consultation process concerning paragraph 11.9 of the Costs Practice Directions in particular, the Government noted that the fact that it was considering reform of that specific provision did not mean that it was contrary to Article 10. If the Consultation Paper suggested that amending it might be an improvement (paragraph 108 above ), that did not amount to a statement that it was “necessary” under Article 10, the Convention requiring minimum standards and States being free to provide further protection ( Brecknell v. the United Kingdom, no. 32457/04, § 70, 27 November 2007). The maintenance of the current CFA/recoverable success fee system fell within its margin of appreciation and, indeed, the ongoing domestic consultation process underlined why, in such a complex area of social and economic policy, that margin should be respected. 183. Nor was the application of these domestic provisions to the applicant's case a disproportionate interference. The only complaint made by the applicant before the domestic courts and this Court was the principle of recoverable success fees as regards both appeals to the House of Lords. However, it did not seek a determination by a court as to whether the level of those success fees was reasonable and proportionate. Equally, the applicant did not request a court to review the level of costs having regard to the low damages award made. Indeed, when the applicant did challenge the base costs in respect of Ms Campbell's lawyers in the second appeal, these were found to be disproportionate and reduced. D. The third parties'submissions and the Government's response 184. Joint submissions were made by Open Society Justice Initiative, Media Legal Defence Initiative, Index on Censorship, the English PEN, Global Witness and by Human Rights Watch. 185. They considered that the case raised an important issue as to the chilling effect of high costs in defamation proceedings on NGOs and small media organisations with small budgets, which organisations were often involved in investigative reporting and dissemination of information on issues of significant public interest. 186. As to those high costs, they relied on a “ Comparative Study of Costs in Defamation Proceedings across Europe ”, as part of the “Programme in Comparative Media Law and Policy” of the Centre for Socio-Legal Studies at Oxford University, which had compared costs of defamation proceedings in 11 countries (Belgium, Bulgaria, Cyprus, France, Germany, Ireland, Italy, Malta, Romania, Spain and Sweden) as well as in England and Wales. Claimants with CFAs incurred substantially higher legal costs than defendants who had no CFA because of the lack of incentive of a client with a CFA to control the costs of legal work done on its behalf. In addition, the study estimated that, even in non-CFA cases, costs in the UK were 4 times higher than in the next most costly jurisdiction, Ireland. Ireland was, in turn, almost ten times more expensive than Italy, the third most expensive jurisdiction. If the figure for average costs across the jurisdictions is calculated without including the figures from England and Wales and Ireland, England and Wales is seen to be around 140 times more costly than the average. None of the comparator countries had CFA schemes, let alone success fees, a factor of itself demonstrative of its disproportion. 187. While CFAs had an important role to play in supporting public interest litigation, the system had to be designed so as not to infringe those organisations'Article 10 rights. The availability of CFAs had made it more difficult for non-governmental organisations (“NGOs”) and small publications to publish information on matters of public interest. 188. NGOs that investigated and exposed serious wrongdoing, which included many of the interveners, were increasingly assuming the traditional watchdog function of the media and, in seeking to expose unpopular truths, NGOs were particularly vulnerable to defamation actions. This was particularly so given libel tourism, the laws of England and Wales allowing organisations to be sued in that jurisdiction even if only a small proportion of the readership (print or internet) was located there. This was compounded by the difficulty in obtaining libel costs'insurance, given their risk profile, and by the CFA scheme. 189. The chilling effect of the excessive costs caused by CFA schemes in England and Wales amounted to a restriction on the Article 10 rights of these publishers which bore no relationship of proportionality to the injury suffered by a claimant and the Government had fashioned no doctrine to prevent this. 190. In response, the Government contended that these submissions were not directed to the costs matter at issue in the present case namely, recoverable success fees. As to the chilling effect of increased costs pursuant to CFAs, this was answered by the availability of defences to defamation actions under substantive law and by the role of the courts in controlling costs. 191. As to the comparative research, the Government contended that insufficient information was known about the study so as to ensure that like was being compared with like. It was inaccurate, for example, in stating that domestic law in England and Wales did not control the reasonableness and proportionality of the costs awarded. The extent to which the differing costs were reflective of the differing legal procedures was not known. Any lack of incentive on the part of a client with a CFA to control costs incurred on its behalf was again answered by the control exercised by the courts over the reasonableness and proportionality of costs'awards. In any event, the applicant's complaints did not concern the general level of base costs in defamation proceedings. E. The Court's assessment 1. Was there an interference? 192. The applicant's complaint, as noted at paragraph 157 above, concerns the impact on it of a costs award which, under domestic law, included success fees calculated at almost twice most of the base costs of two appeals to the House of Lords. The Court considers, and it was not seriously disputed by the Government, that the requirement to pay these success fees, as an unsuccessful defendant in breach of confidence proceedings, constituted an interference with the applicant's right to freedom of expression guaranteed by Article 10 of the Convention. 193. The fact, as emphasised by the Government, that the underlying legal regime was “permissive”, in that it permitted a CFA including success fees to be concluded rather than requiring it, does not change the fact that the applicant was required, pursuant to a court order for costs, to pay costs including the impugned success fees to the claimant. 2. Was the interference “ prescribed by law”? 194. The provisions relating to CFAs, the calculation of success fees by a percentage uplift and their recoverability from an unsuccessful defendant are regulated by the 1990 and 1999 Acts, the Conditional Fees Arrangement Orders 1995 and 2000 as well as the CPR and the relevant Costs Practice Directions, as outlined at paragraphs 89-98 above. It is clear, and the parties did not dispute, that the interference was prescribed by law within the meaning of Article 10 of the Convention. 3. Did the interference have a “ legitimate aim ”? 195. The essential objective of CFAs, of which success fees recoverable from an unsuccessful defendant were an integral part, were broader than the individual case and were described by the Government at paragraphs 173-175 above. This system was designed to provide a greater range of funding options to allow the widest possible range of people to have a real opportunity to have effective access to legal services and to the courts in relation to as many forms of civil litigation as possible, and to do so via a fundamental re-balancing of the means of access to justice by resorting to private sector funding rather than use of public funds. 196. The Court recalls that the right of effective access to a court is a right inherent in Article 6 of the Convention ( Golder v. the United Kingdom, 21 February 1975, Series A no. 18). While it does not require state assistance in all matters of civil litigation, it may compel the State to provide, for example, the assistance of a lawyer when such assistance proves indispensable for effective access to court, depending on the particular facts and circumstances, including the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself ( Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; and Steel and Morris v. the United Kingdom, no. 68416/01, § 61, ECHR 2005 ‑ II and references contained therein). 197. The Court therefore accepts that the CFA with recoverable success fees sought to achieve the legitimate aim of the widest public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others within the meaning of Article 10 § 2 of the Convention. 4. Was the interference “necessary in a democratic society ”? 198. The Court will examine whether success fees recoverable against unsuccessful defendants are “necessary in a democratic society ” to achieve that aim. In particular, it must consider the proportionality of requiring an unsuccessful defendant not only to pay the reasonable and proportionate costs of the claimant, but also to contribute to the funding of other litigation and general access to justice, by paying up to double those costs in the form of recoverable success fees. The applicant did not complain about having had to pay any ATE premiums of the claimant. 199. This complaint also concerns the question of whether the authorities struck a fair balance between two values guaranteed by the Convention which may come into conflict with each other, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, an individual's right of access to court protected by Article 6 of the Convention. As noted at paragraph 1 4 2 above, this balancing of individual Convention interests attracts a broad margin of appreciation. 200. Moreover, a wide margin of appreciation is available to a legislature in implementing social and economic policies and the Court will respect the legislature's judgment as to what is “ in the public interest ” unless that judgment is manifestly without reasonable foundation ( James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98 ). The Court later described this margin of appreciation as the “special weight” to be accorded to the role of the domestic policy-maker in matters of general policy on which opinions within a democratic society may reasonably differ widely ( Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII). However, if such general measures produce an individual and excessive burden, the requisite balance will not be found ( James and Others v. the United Kingdom, at § 50) : put otherwise, the Court may not regard as disproportionate every imbalance between the public interest and its effects on a particular individual but will do so in exceptional circumstances, when a certain “threshold of hardship” on the individual has been crossed ( Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 192, 15 March 2007 ). 201. However, the Court has found the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern ( Jersild v. Denmark, cited above, § 35; and Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 64. It is, moreover, not necessary to consider, in any particular case, whether a damages award has a chilling effect on the press as a matter of fact so that, for example, unpredictably large damages awards in defamation cases are considered capable of having such an effect ( Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, § 114, ECHR 2005 ‑ V (extracts) ). 202. The Court notes at the outset that the essential position of the Government was that any disproportionality visited on an individual case by the CFA/recoverable success fee regime was justified by the need to adopt provisions of general application when pursuing broad social and economic policy objectives. They referred to the reasoning of Lord Hoffman who had similarly responded to the applicant's argument based on the facts of its case namely, that Ms Campbell was wealthy so that a CFA/recoverable success fee was not necessary to ensure her access to court. Lord Hoffman found that the general policy objectives underlying the CFA/recoverable success fees scheme meant that the scheme could not be disallowed solely on the ground that liability of an individual applicant would be inconsistent with its rights under Article 10 of the Convention (relying on the above-cited James v. the United Kingdom case). He considered the scheme to be a rational legislative policy which the Government could adopt as a general scheme compatibly with Article 10 and which the courts had to accept ( Lord Hoffman at paragraph 63 above. See also Lord Carswell, paragraphs 72-73 above). 203. However, one of the particularities of the present case is that this general scheme and its objectives have themselves been the subject of detailed and lengthy public consultation notably by the Ministry of Justice since 2003. While most of this process transpired after the House of Lords judgment in the second appeal in the present case (2005), it highlighted fundamental flaws underlying the recoverable success fee scheme, particularly in cases such as the present. The Court has therefore set out this public consultation process in some detail above (paragraphs 100-120 above) and has highlighted key elements below. 204. By March 2006 the House of Commons Constitutional Affairs Select Committee considered that the courts should address the question of disproportionate costs in defamation and privacy proceedings and it made certain proposals including cost - capping. No legislative action was taken. The proposal of staged success fees (re-assessing the risk and the percentage of the success fee as the action progressed) was then included in the “ Theobalds Park Plus Agreement ” drafted by the CJC following mediation between media organisations and claimants'representatives. The Ministry of Justice agreed with the CJC's recommendations that the Theobalds Park Plus Agreement could help ensure that costs of litigation were proportionate and reasonable. As a result, in 2007 it sought views on the implementation of the CJC's recommendations including on a range of fixed staged recoverable success fees. A slightly revised scheme was published with responses to the consultation in July 2008. The media, in particular, did not support the proposals and the scheme was not implemented. 205. The Ministry of Justice then published a further Consultation Paper in February 200 9. It noted that the high levels of legal costs incurred in publication proceedings had been the subject of criticism and debate in the courts and in Parliament; that excessive costs might force defendants to settle unmeritorious claims which in turn threatened a risk to reporting; and that some had argued that it was a risk to freedom of expression. It sought views on measures to better control costs. While certain minor proposals concerning, inter alia, additional information and control of ATE insurance were proposed and introduced (The Civil Procedure (Amendment) Rules 2009 ), other matters were left open pending the Jackson Review. Amending the prohibition on reviewing the proportionality of the total costs (paragraph 11.9 of the Costs Practice Directions ) was principally considered with respect to defamation disputes because it was mainly in those cases that the key problems addressed in the Paper were seen to arise. 206. The Jackson Review, commissioned by the Ministry of Justice and published January 2010, was an extensive review of costs in civil litigation and it highlighted four flaws inherent in the recoverability of success fees in civil litigation. 207. The first flaw of the recoverable success fee regime was the lack of focus of the regime and the lack of any qualifying requirements for claimants who would be allowed to enter into a CFA. He highlighted certain anomalies flowing from this. 208. Secondly, Jackson LJ considered flawed the fact that there was no incentive on the part of a claimant to control the incurring of legal costs on his or her behalf and that judges assessed those costs only at the end of the case, when it was considered too late to control what had been spent. This concern was highlighted by the third party submissions to this Court by media organisations (paragraph 186 above). The consequent “costs race” and resulting rise in costs were particularly underlined by the judiciary ( the King case at paragraph 99 above and by Lord Hoffman in the costs'appeal in the present case at paragraph 6 5 above). 209. The third flaw was the “blackmail” or “chilling” effect of the system of recoverable success fees. The costs burden on the opposing parties was so excessive that often a party was driven to settle early despite good prospects of a successful defence. This “ransom” effect of the scheme was highlighted during the earlier public consultation processes (see paragraphs 101 and 107 above), by the judiciary in other cases (the Turcu and King cases, at paragraphs 98 and 99 above), in the judgments of the House of Lords in the second appeal in the present case (Lords Hoffman and Carswell, paragraphs 64 and 72 above) and by the third parties (paragraphs 185 and 189 above). 210. The fourth flaw was the fact that the regime provided, at the very least, the opportunity, it not being possible to verify the confidential financial records of solicitors and barristers, to “cherry pick” winning cases to conduct on CFAs with success fees. The Court considers it significant that this criticism by Jackson LJ would imply that recoverable success fees did not achieve the intended objective of extending access to justice to the broadest range of persons : instead of lawyers relying on success fees gained in successful cases to fund their representation of clients with arguably less clearly meritorious cases, lawyers had the opportunity to pursue meritorious cases only with CFAs /success fees and to avoid claimants whose claims were less meritorious but which were still deserving of being heard. 211. Jackson LJ went on to point out that these flaws produced in defamation and privacy cases the “most bizarre and expensive system that it is possible to devise” for reasons which essentially concerned the excessive costs'burden imposed on defendants in such cases. 212. Jackson LJ therefore recommended to the Ministry of Justice far-reaching reform. He recommended, for all civil litigation including privacy cases, a return to CFAs whose success fees and ATE premiums were not recoverable from the losing party (the pre-1999 Act position), pointing out that the pre-1999 Act arrangements had not suffered from the above flaws and still extended access to justice for many individuals who formerly had none. If that recommendation were to be adopted, a further two recommendations (specifically concerning defamation and privacy actions) were made to ensure the objective of ensuring access to justice for claimants of slender means: increasing the general level of damages in defamation and breach of privacy cases by 10% and introducing a regime of qualified one - way costs shifting, so that the amount of costs an unsuccessful claimant might be ordered to pay was a reasonable amount, reflective of the means of the parties and their conduct in the proceedings. 213. The subsequent report of the House of Commons of 2010 again recognised similar flaws of recoverable success fees (the “blackmail” effect on the press; “cherry picking” by lawyers so that CFA cases were rarely lost; and the lack of incentive on lawyers or their clients to control costs). It considered that those problems had to be addressed urgently and it proposed to limit the recoverability of success fees to 10% of the base costs with the balance to be agreed between the solicitor and client. 214. The further Consultation Paper in January 2010 recorded the particular concern of the Ministry of Justice about the impact of 100% success fees in publication cases. It considered that experience over the past decade had shown that, in defamation proceedings in particular, “the balance had swung too far in favour of the interests of claimants and against the interests of defendants” and it noted that the Government did not believe that the “ present maximum success fee in defamation proceedings is justifiable in the public interest ”. Pending fuller consideration of Jackson LJ's proposals, the Ministry sought views on a proposal to reduce the maximum uplift from 100% to 10% of the base costs in defamation and privacy cases. In March 2010 the Ministry of Justice confirmed that legislation had been put to Parliament to reduce success fees. Pending a fuller assessment of the Jackson Review which set out a “clear case for CFA reform”, this was only an interim proposal. However, this interim solution was not maintained given the intervening general election in April 2010. 215. In summary, within four years of the introduction by the 1999 Act of recoverable success fees to the existing CFA scheme, concerns expressed in the industry about consequent excessive costs orders, notably, in defamation and other publication including privacy cases, led to detailed public consultations by the Ministry of Justice and inquiries by Committees of the House of Commons, as well as a far- reaching review of costs in civil litigation commissioned by the Ministry. The Ministry of Justice acknowledged in that process that, as a result of recoverable success fees, the costs burden in civil litigation was excessive and, in particular, that the balance had swung too far in favour of claimants and against the interests of defendants. This was particularly so in defamation and privacy cases. Not only was the burden on defendants in publication cases recognised as excessive but one of the acknowledged flaws of the scheme - the opportunity for solicitors to “cherry pick” cases evidenced by the success of publication cases run on a CFA/success fee basis - would appear to indicate that the scheme has not achieved the espoused aim of ensuring access to justice of the broadest range of persons. Of equal importance, Jackson LJ considered that the pre-1999 Act position achieved that aim without overburdening defendants, a point with which a large number of respondents to the 2010 consultation of the Ministry had agreed (paragraph 119 above). Moreover, pending fuller consideration of the broader recommendations of Jackson LJ, the Ministry of Justice introduced legislation as a first step towards solving the acknowledged problems by drastically reducing the maximum success fee to 10%, precisely the core point impugned by the present applicant. However, the Government were unable to ensure the adoption of the legislation and have not indicated whether this or any other legislation has since been proposed for adoption. 216. The Government relied on the domestic courts'ability to control costs in publication proceedings through the provisions of the CPR and the Costs Practice Directions. However, the second flaw highlighted in the Jackson Review indicates that those safeguards were undermined by a combination of an uncontrolled “costs race” provoked by the impugned scheme during an action and the difficulty of a court in effectively assessing those costs after the action. In addition, while those provisions addressed the reasonableness of base costs given matters such as the amount at stake, the interests of the parties and the complexity of the issues, Lord Hope underlined that the separate control of the reasonableness of success fees essentially concerned the review of the percentage uplift on the basis of the risk undertaken in the case and that, in an evenly balanced case such as the present, success fees were inevitably 100% (see also Designer's Guild Limited, cited at paragraph 97 above). Such safeguard provisions could not, therefore, as Lord Hoffman confirmed, address the applicant's rejection in principle of recoverable success fees calculated as a percentage of reasonable base costs. Moreover, these safeguards relied on by the Government were available throughout the period of public consultation at the end of which the Ministry of Justice accepted that costs were disproportionate, especially in publication cases, so that a drastic reduction in the maximum success fee was required. 217. The Government did not address in detail the public consultation process, much of which had taken place after their observations were submitted in March 2009. It is also true that attempts by a State to improve a scheme does not mean, of itself, that the existing scheme is in violation of the Convention ( Brecknell v. the United Kingdom, cited above, at § 70). However, the Court considers that the depth and nature of the flaws in the system, highlighted in convincing detail by the public consultation process, and accepted in important respects by the Ministry of Justice, are such that the Court can conclude that the impugned scheme exceeded even the broad margin of appreciation to be accorded to the State in respect of general measures pursuing social and economic interests (the above-cited case of Tolstoy Miloslavsky v. the United Kingdom, at § 50 ). 218. This conclusion is indeed borne out by the facts of the present case. On the one hand, the claimant was wealthy and not in the category of persons considered excluded from access to justice for financial reasons. Her representatives accepted in the domestic proceedings (paragraph 181 above) that they did not do much CFA work, which limited their potential to act for impecunious claimants with access to justice problems. The applicant's case was not without merit, in that the Court of Appeal and a minority of the House of Lords considered that the impugned articles did not violate Ms Campbell's right to private life. On the other hand, and while accepting that the proceedings were lengthy and somewhat complex, the total costs billed by the claimant, as regards the two appeals to the House of Lords alone, amounted to GBP 850,000.00, of which GBP 365,077.13 represented success fees. It is true that the applicant, in the end, reached a settlement of the costs of both appeals paying the total sum of GBP 500,000.00 (base costs and success fees). However, given the findings of the House of Lords and of the Judicial Taxing Officers in the second appeal (paragraphs 70 and 80, respectively) as well as in the similar above-cited case of Designer's Guild Limited, success fees were clearly recoverable against the applicant and, further, at the rates of 95% and 100% in the first appeal and 95% for the solicitors'costs in the second appeal. Accordingly, even if it is not possible to quantify with certainty the precise amounts paid by the applicant which can be attributed to success fees, it is evident that the negotiated costs settlements reflected the obligation on the applicant to discharge substantial success fees. 219. In such circumstances, the Court considers that the requirement that the applicant pay success fees to the claimant was disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters. 220. Accordingly, the Court finds that there has been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 221. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 222. The applicant claimed reimbursement of the success fees paid to the claimant following both appeals to the House of Lords. Since the success fees claimed by her as regards the first appeal amounted to 47% of the total appeal costs billed, the applicant claimed reimbursement of GBP 164,500, being 47% of the total appeal costs actually paid in settlement by it. By the same reasoning, it claimed GBP 50,000 for the success fee for the second appeal, that being 33% of the total costs paid by it (the lower percentage reflecting the fact that only the solicitors'fees were subject to a CFA in the second appeal ). This amounted to a total claim of GBP 214,000 in pecuniary damages. 223. The applicant also claimed GBP 100,000 (inclusive of interest and taxation costs) being the costs paid by it, using the above means of calculation, in settlement of the base costs claimed pursuant to the costs order against it as in the second appeal to the House of Lords. 224. The applicant further claimed GBP 41,258.00 in respect of its costs in preparing a separate application on the costs issue for this Court. A further GBP 52,349.00 was claimed for work done on both the breach of confidence and costs issues since the communication of the cases. Vouchers were submitted for all costs claimed. 225. The Government did not dispute the applicant's analysis as regards the success fees but disputed the amounts claimed. The costs'settlements between the applicant and the claimant did not specify an amount paid in respect of the success fees and, as a matter of principle, it should be assumed that the bulk of the costs paid were base costs, which would be consistent with the applicant's stance of opposition to payment of the success fees. The pecuniary loss for the first appeal should be GBP 35,511.00, the amount by which the sum paid in respect of the first appeal exceeded the base costs billed. The pecuniary loss as regards the second appeal should be zero since the sum paid by the applicant (GBP 150,000) was less than the claimed base costs (GBP 170,499.82). The Government did not address the applicant's request for reimbursement of the base costs of the second appeal to the House of Lords. 226. The Government also made detailed submissions to the effect that the costs claimed in respect of the application to this Court were plainly excessive. 227. The Court considers that the question of the application of Article 41 is not ready for decision. The question must accordingly be reserved and the further procedure fixed with due regard to the possibility of agreement being reached between the Government and the applicants. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention with regard to the order requiring the applicant company to pay damages for breach of confidence. It considered that |
221 | Voluntary waiver of right to assistance of a lawyer | II. RELEVANT DOMESTIC LAW 26. A description of the relevant domestic law concerning the right to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27 ‑ 31, 27 November 2008). 27. Under Article 135/ a of the Code of Criminal Procedure in force at the time of the applicant ’ s arrest, statements were to be given by the accused of his or her own free will. Methods such as ill-treatment, torture, induced fatigue, the administration of drugs, torment and deception that “impairs the will of the accused” were proscribed. Statements that had been obtained through such methods could not be used in evidence, even if the accused had agreed to their use. 28. Article 238 of the same Code empowered the criminal courts to refuse to admit any unlawfully obtained evidence. Furthermore, Article 254 of the same Code explicitly stated that evidence that had been obtained unlawfully could not be used by the courts. 29. Article 148 of the new Code of Criminal Procedure (“the CCP”) (Law no. 5271) in force as of 1 June 2005 reads as follows: “The statement of the suspect and the accused should be based on his or her own free will. Physical or psychological interference capable of undermining [the free will], such as ill-treatment, torture, the administration of drugs, induced fatigue, torment and deception, duress, threat, or use of other equipment, shall be prohibited. No benefit that is contrary to law shall be promised. Statements that were obtained through such methods shall not be used in evidence even if consent has been given [by the accused or the suspect] for their use. Statements taken by the police in the absence of a lawyer shall not be relied on [for conviction] unless the suspect or the accused verifies them before a judge or a court. ...” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 30. The applicant alleged, in particular, that she had not had a fair trial on account of the denial of access to a lawyer while in police custody and the use by the trial court of her statements allegedly obtained under duress and in the absence of a lawyer. The Court will examine her complaints 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 and public hearing within a reasonable time 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;” 31. The Government contested that argument. A. Use of the applicant ’ s police statements taken under alleged duress 32. The Government raised a plea of non-exhaustion of domestic remedies in respect of the applicant ’ s complaint that her statements allegedly taken under duress had been relied on by the trial court to convict her. In that connection, the Government maintained that the applicant had failed to raise that complaint either explicitly or at least in substance before the Court of Cassation. Consequently, the Government requested that the Court reject that complaint under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 33. In response, the applicant maintained that the Government ’ s objection had been in contravention of the spirit and the settled case-law of the Court under Article 6 of the Convention. She accordingly invited the Court to dismiss the Government ’ s objection. 34. The Court does not consider it necessary to examine the Government ’ s objection of non-exhaustion of domestic remedies, given that this part of the application is in any event inadmissible for the following reasons. 35. The Court observes that the applicant has not submitted any evidence demonstrating that she was subjected to physical pressure while in custody. Nor did she argue that she had been unable to obtain, or had been prevented from obtaining, any such evidence. In this connection, the Court notes that the two medical reports included in the case file indicated no signs of ill-treatment on the applicant ’ s body and at no stage of the domestic proceedings or during the proceedings before the Court did the applicant challenge the veracity of these reports or allege that the doctors who had issued them had failed to examine her properly. Moreover, the Fatih public prosecutor ’ s office issued a decision not to prosecute in respect of her complaints of ill-treatment while in police custody owing to lack of evidence. The Court therefore considers that the applicant has failed to lay the basis of an arguable claim in respect of her allegations that she was subjected to duress while giving statements to the police (see Kaytan v. Turkey, no. 27422/05, § 50, 15 September 2015). 36. It follows that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. B. Access to a lawyer during police custody 1. Admissibility 37. The applicant complained that she had been denied legal assistance while in police custody. 38. The Government contested that claim. 39. 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. 2. Merits (a) The parties ’ submissions 40. The applicant reiterated her claims. 41. The Government pointed out that the present case was different from that of Salduz in that the applicant had been free to have legal assistance when giving statements to the police, as the statutory restriction on the right of access to a lawyer had already been lifted. The Government stated that although the applicant had promptly retracted her statements to the police, her retraction had not been convincing and consistent as, in their opinion, the medical reports issued in respect of her had been more important than her allegations. Moreover, there had been no element indicating that the applicant had not validly waived her right to legal assistance. To support that contention, the Government referred to Yoldaş v. Turkey, no. 27503/04, §§ 51 ‑ 54, 23 February 2010, and argued that the applicant ’ s statement form had indicated that no lawyer had been requested. Thus, the statement form, which the applicant had signed, should be sufficient to show that the applicant had validly waived her right to a lawyer when giving statements to the police. They further pointed out that İ.A., who had also been arrested during the same period with the applicant, had benefited from the assistance of a lawyer. In the view of the Government, this refuted the applicant ’ s allegation that she had been denied the assistance of a lawyer. 42. As to the fairness of the criminal proceedings against the applicant, the Government submitted that the applicant ’ s police statement had not been the sole evidence constituting the basis for her conviction. In that connection, they pointed out that the applicant, who had given detailed statements in relation to her connection with the PKK, had failed to provide a convincing explanation as to why she lived together with İ.A. and why she had a piece of paper with R.B. ’ s phone number on it. The applicant had had the opportunity to challenge the authenticity of the evidence and to oppose its use. 43. Furthermore, the domestic courts had examined the evidence in an objective manner and addressed the objections put forward by the applicant. The procedural guarantees had been sufficient in the instant case. Lastly, taking into account the proceedings as a whole, the fact that the applicant ’ s lawyer had been absent during her custody had not seriously impaired her right to a fair trial. As such, the Government invited the Court to conclude that there had been no violation in the instant case. (b) The Court ’ s assessment (i) General principles 44. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016); Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, 12 May 2017); and Beuze v. Belgium [GC] (no. 71409/10, §§ 119-50, 9 November 2018). 45. The Court reiterates that the right to be assisted by a lawyer applies throughout and until the end of the questioning by the police, including when the statements taken are read out and the suspect is asked to confirm and sign them, as the assistance of a lawyer is equally important at this point of the interview. The lawyer ’ s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect and protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police (see Soytemiz v. Turkey, no. 57837/09, § 45, 27 November 2018). 46. The Court also reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, 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. Moreover, the waiver must not run counter to any important public interest (see Simeonovi, cited above, § 115). It follows that a waiver of the right to a lawyer, a fundamental right among those listed in Article 6 § 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, § 118, 18 December 2018). 47. The Court further reiterates that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others v. the United Kingdom, cited above, § 251 ). Those considerations also hold true for the validity of a waiver of the entitlement to the guarantees of a fair trial, as what constitutes a valid waiver cannot be the subject of a single unvarying fact but must depend on the individual circumstances of the particular case (see Murtazaliyeva, cited above, §§ 117 ‑ 18). (ii) Application to the present case 48. The Court observes at the outset that the present case differs from Salduz, where the restriction on the applicant ’ s right of access to a lawyer stemmed from Law no. 3842 and was thus systemic. In other words, there was no blanket restriction on the applicant ’ s right of access to a lawyer in police custody, as at the time of her arrest Law no. 3842 – which had provided for a systemic restriction on access to a lawyer in respect of people who had been accused of committing an offence that fell within the jurisdiction of State Security Courts – had already been amended. For that reason, from 15 July 2003 onwards it had been legally possible for suspects to have access to a lawyer when giving statements to the police, the public prosecutor and the investigating judge subject to the condition that they had asked for one. 49. The legal question before the Court is whether the applicant validly waived her right of access to a lawyer before giving statements to the police on 14 November 2003, as it is not disputed between the parties that the applicant was represented by a lawyer when giving statements to the public prosecutor and the investigating judge. 50. Turning to the particular circumstances of the case, the Court observes that according to the statement form dated 14 November 2003, which the applicant signed, she was informed of her rights, including her right to have legal assistance and her right to remain silent at the time her statements were taken. The first page of the same record where the applicant stated that she did not want a lawyer or to remain silent includes a printed phrase stating “No lawyer sought” and a box next to it is marked with a printed “X”. Moreover, the Court notes that it was essential that the applicant be clearly informed about the consequences of not requesting the assistance of a lawyer. The Government have not demonstrated that the applicant received any specific information to that effect. 51. In that connection, the Government relied on the Yoldaş judgment (cited above) to support their argument that the applicant had validly waived her right to a lawyer when giving statements to the police. In their reading of that judgment, the Court considered the applicant ’ s statement form, which had been signed by him and according to which he had not asked for a lawyer, as an unequivocal waiver. Therefore, the same approach should also be maintained in the instant case in view of the applicant ’ s declaration to the effect that she had not asked for a lawyer on the statement form, which she had signed. 52. The Court takes note of the following factors in relation to its Yoldaş judgment (cited above, §§ 52-53). Firstly, it is important to reiterate that in Yoldaş the Court did not adjudicate the validity of the applicant ’ s waiver on the basis of a single isolated element, namely the applicant ’ s signature on the statement form explaining the rights of arrested persons, including the right to remain silent and the right to legal assistance. In fact, it was a combination of facts such as the applicant ’ s undisputed signature on the statement form and on the form concerning the rights of suspects and accused ( şüpheli sanık hakları formu ), his handwritten note on another record that he would not wish to see his family while in custody, and more importantly the trial court ’ s scrupulous examination of the applicant ’ s police statements and its subsequent refusal to convict the applicant in respect of six offences that were based solely on his police statements. In the light of those factors, the Court, after carrying out a holistic assessment of the circumstances of that case, with an emphasis on the trial court ’ s scrutiny of the applicant ’ s allegation that he had been denied legal assistance when giving statements to the police, and after having observed that there had been nothing in the proceedings to suggest that the applicant ’ s waiver of legal assistance while in police custody had not been free and unequivocal, concluded that the waiver had been valid and that there had been no violation of the applicant ’ s rights under Article 6 §§ 1 and 3 (c) of the Convention. 53. In the view of the Court, the present case cannot be rejected on the basis of Yoldaş as it differs from it in certain important aspects. First of all, the applicant ’ s statement form in the instant case did not bear a handwritten note by her (compare Sharkunov and Mezentsev v. Russia, no. 75330/01, § 104, 10 June 2010). Secondly, the applicant in Yoldaş retracted his police statements only during the course of the trial, whereas in the instant case the applicant immediately retracted her police statements as soon as she had access to a lawyer both before the public prosecutor and the investigating judge, and maintained that position before the trial court (see Dvorski v. Croatia [GC], no. 25703/11, § 102, ECHR 2015). Furthermore, as will be examined below, the trial court does not appear to have subjected the applicant ’ s police statements to scrutiny when using those statements to convict her. As a result, the Court dismisses the Government ’ s argument based on Yoldaş. 54. On that account, the applicant ’ s situation appears to resemble that of the applicant in the case of Ruşen Bayar v. Turkey (no. 25253/08, 19 February 2019), who was tried and convicted in the same set of criminal proceedings as the applicant in the instant case. In that case, the Court held, inter alia, that the Government were not able to show the validity of the applicant ’ s waiver of his right to a lawyer on the basis of the documents he had signed while in police custody, given that the applicant had contested the content of his police statements first of all during his appearance before the public prosecutor and subsequently throughout the entire proceedings (see Knox v. Italy, no. 76577/13, § 126, 24 January 2019). The Court is mindful of the probative value of documents signed while in police custody. However, as with many other guarantees under Article 6 of the Convention, those signatures are not an end in themselves and they must be examined by the Court in the light of all the circumstances of the case (see Ruşen Bayar v. Turkey, cited above, § 121). In addition, the use of a printed waiver formula may represent a challenge as to ascertaining whether the text actually expresses an accused ’ s free and informed decision to waive his or her right to be assisted by a lawyer. 55. In the instant case, the Court is of the view that the applicant ’ s immediate statements to the doctor at the end of her police custody on 17 November 2003 that the police had hit her head, threatened to kill and rape her and had driven their car into her, as a result of which she had fallen unconscious, and her statements to the public prosecutor that she had had to sign the police statements as a result of the violence and coercion on their part, are weighty indications against the conclusion that she had waived her right to a lawyer in accordance with the Convention standards when giving statements to the police on 16 November 2003. This remains so despite the fact that the Court has already declared inadmissible the applicant ’ s complaint that she was subjected to duress while in police custody as being manifestly ill-founded, because the absence of any element suggesting that the applicant was subjected to ill-treatment or was otherwise coerced into making incriminating statements is not, in itself, sufficient to conclude that the waiver in a given case is valid for the purposes of a fair trial under Article 6 of the Convention (see Bozkaya v. Turkey, no. 46661/09, § 45 in fine, 5 September 2017). 56. Furthermore, the Court observes that the first page of the applicant ’ s statement form in the instant case also included the information that she was literate. That said, however, according to the third page of the same record the applicant stated that she had not attended school. Likewise, at the hearing held on 17 March 2004, the applicant stated before the trial court that she was illiterate and that she had been forced by the police to sign her statements. 57. In this context, the Court finds it useful to reiterate that additional protection should be provided for illiterate detainees with a view to ensuring that the voluntary nature of a waiver is reliably established and recorded (see Şaman v. Turkey, no. 35292/05, § 35, 5 April 2011). The Court also notes that the applicant was accused of being a member of an illegal organisation, which is a very serious charge, and faced a heavy penalty. Yet, the trial court did not take any reasonable steps to verify this crucial point, specifically whether the applicant was illiterate, despite the fact that the applicant had brought that matter to its attention at the hearing held on 17 March 2004. 58. While the Court notes that some of the documents found on the applicant included handwritten numbers which forensic experts concluded had been handwritten by the applicant, it is not entirely convinced that those factors were sufficient to establish that the applicant was not illiterate. 59. However, the fact remains that the trial court failed to carry out an assessment of the above-mentioned circumstances in relation to the validity of the applicant ’ s waiver of her right to legal assistance (see Savaş v. Turkey, no. 9762/03, § 68, 8 December 2009). 60. Moreover, although the Government argued that the fact that İ.A., who had been arrested on the same day as the applicant, had been able to benefit from legal assistance and had refuted the applicant ’ s allegations, the Court notes that their statements were taken on different dates and by different police officers. Under these circumstances, the mere fact of being in the same police station and having been arrested on the same day is not sufficient to refute the applicant ’ s contention. Therefore, the Court is unable to subscribe to that argument (compare Imbras v. Lithuania (dec.), no. 22740/10, § 65, 10 July 2018). 61. In view of the conflicting circumstances as to the validity of the applicant ’ s waiver of her right to legal assistance and several years on from the events in issue, the Court is not in a position to establish whether the applicant ’ s waiver was a valid one, especially in view of the fact that it is in the first place the national authorities ’ duty to establish in a convincing manner whether the applicant ’ s confessions and waivers of legal assistance were voluntary (see Türk v. Turkey, no. 22744/07, § 53, 5 September 2017). Therefore, it considers that the Government have failed to demonstrate that the applicant validly waived her right to a lawyer when giving statements to the police. (c) Whether there were “compelling reasons” to restrict access to a lawyer 62. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Simeonovi, cited above, § 117). 63. The Court notes that the Government have not offered any compelling reasons for the restriction of the applicant ’ s access to a lawyer on 14 November 2003 when she gave statements to the police. It is not for the Court to undertake of its own motion to determine whether there had been any compelling reasons to restrict the applicant ’ s right of access to a lawyer. (d) Whether the overall fairness of the proceedings was ensured 64. The Court will now examine whether the overall fairness of the criminal proceedings against the applicant was prejudiced by the absence of a valid waiver of legal assistance when the applicant gave statements to the police and the subsequent admission by the trial court of those statements to secure her conviction. As there were no compelling reasons to restrict the applicant ’ s right of access to a lawyer when she was giving statements to the police, the Court must apply a very strict scrutiny to its fairness assessment (see Dimitar Mitev v. Bulgaria, no. 34779/09, § 71, 8 March 2018). More importantly, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Simeonovi, cited above, § 132, and Ibrahim and Others, cited above, § 265). 65. The Court reiterates that in determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence have been respected (see Ibrahim and Others, cited above, § 274 for a non ‑ exhaustive list of factors when assessing the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings), in particular whether the applicant was given the opportunity of challenging the admissibility and authenticity of the evidence and of opposing its use (see Panovits, cited above, § 82). 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. 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 Pavlenko, cited above, § 116). 66. Furthermore, the Court reiterates that it was in the first place the trial court ’ s duty to establish in a convincing manner whether or not the applicant ’ s confessions and waivers of legal assistance had been voluntary (see Dvorski, cited above, § 109, and Türk, cited above, § 53). In that connection, the Court also notes that Turkish law sets out a very strong procedural safeguard in Article 148 § 4 of the Code of Criminal Procedure capable of remedying the procedural shortcomings in relation to the use of police statements taken without a lawyer being present irrespective of whether a suspect had waived his or her right to legal assistance or not. Pursuant to that provision, the police statements taken without a lawyer being present should not have been used by the trial court unless they had been confirmed before a court or a judge (see Ruşen Bayar, cited above, § 128). 67. In the view of the Court, the above-mentioned facts of the instant case were capable of raising at least a prima facie case in relation to the validity of the applicant ’ s waiver of the right to have legal assistance when giving statements to the police, which was required to be addressed by the national authorities. With that in mind, the Court also observes that the applicant made very detailed self-incriminatory statements to the police and confessed to her crimes. According to the documents in the Court ’ s possession, that was the only occasion on which the applicant made self-incriminatory statements. The applicant promptly retracted those statements as soon as she was represented by her lawyer on 17 November 2003 and retracted her police statements before the public prosecutor, the investigating judge and the trial court (see Ruşen Bayar, cited above, § 129, and Pishchalnikov v. Russia, no. 7025/04, § 88, 24 September 2009). 68. Nevertheless, as was mentioned above, the trial court did not conduct any examination as regards the validity of the applicant ’ s waiver or the statements she had made to the police in the absence of a lawyer. In the absence of any such assessment, the Court is unable to conclude that the applicant had the opportunity to meaningfully challenge the authenticity of the evidence and to oppose its use despite the fact that she was represented by a lawyer throughout the trial (compare Sitnevskiy and Chaykovskiy v. Ukraine, nos. 48016/06 and 7817/07, § 131, 10 November 2016). Hence, the Court is not satisfied that the applicant ’ s complaint received an appropriate response from the national courts and considers that fair procedures for making an assessment of the issue of legal assistance proved non-existent in the present case (see Rodionov v. Russia, no. 9106/09, § 167 in fine, 11 December 2018). 69. Moreover, the trial court used the applicant ’ s police statements when finding her guilty of membership of a terrorist organisation and eventually in sentencing her to six years and three months ’ imprisonment. As is apparent from the trial court ’ s reasoned judgment, the Court considers that it cannot be ruled out that the applicant ’ s statements formed an integral part of the evidence upon which her conviction was based. 70. Against such a background, the Court is of the view that the absence of a close scrutiny by the national courts of the circumstances surrounding the applicant ’ s waiver and the fact that this flaw was not remedied by any other procedural safeguards during the proceedings rendered the trial as a whole unfair (see Bozkaya, cited above, § 53, and Türk, cited above, § 58). 71. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 72. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 73. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 74. The Government submitted that the applicant ’ s claims were excessive. 75. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the instant case constitutes sufficient just satisfaction. Given the possibility under Article 311 of the Code of Criminal Procedure to have the domestic proceedings reopened in the event that the Court finds a violation of the Convention, the Court makes no award under this head ( see Bayram Koç, cited above § 29). B. Costs and expenses 76. The applicant claimed 5,022 Turkish liras (TRY – approximately EUR 1,570), which constituted the legal fee inclusive of value-added tax for the proceedings before the Court. 77. She also claimed TRY 600 for expenses relating to postage, translation and stationery which she had incurred before the proceedings (approximately EUR 187). In support of her claims, the applicant submitted the scale of fees of the Union of Bar Associations of Turkey. 78. The Government invited the Court to dismiss the applicant ’ s claims under costs and expenses due to her failure to submit any documents to support those claims. 79. The Court reiterates that it has already held that mere reference to the Bar Associations ’ scale of fees without submitting any other document was not sufficient to comply with Rule 60 § 2 and 3 of its Rules and dismissed the claims relating to costs and expenses on that ground (see Hülya Ebru Demirel v. Turkey, no. 30733/08, § 61, 19 June 2018). In the instant case, regard being had to the fact that the applicant only submitted the Union of Bar Associations of Turkey ’ s scale of fees to support her claims, the Court decides not to any award under this head. | The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. Although it rejected as inadmissible the applicant’s complaint about her conviction on the basis of police statements taken under duress because of lack of evidence of ill-treatment, it found that the Turkish Government had failed to show that a printed “X” next to “no lawyer sought” on her statement form had amounted to her validly waiving her right to a lawyer during custody. In point of fact, as soon as she had had access to a lawyer at the end of her custody, she had retracted her statements. Nor was the Court satisfied with the national courts’ response to the applicant’s complaint. They had neither examined the validity of the waiver nor the statements she had made to the police in the absence of a lawyer. Such lack of scrutiny had not been remedied by any other procedural safeguards, and the overall fairness of the proceedings against her had therefore been prejudiced. |
801 | Right to liberty and security (Article 5 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE 67. Article 21 of the Lithuanian Constitution prohibits torture or degrading treatment of persons. Article 22 thereof states that private life is inviolable. 68. The Law on Mental Heath Care provides: Article 1 “1. Main Definitions ... 5. “Mental health facility” means a health care institution (public or private), which is accredited for mental health care. If only a certain part (a “unit”) of a health care institution has been accredited to engage in mental health care, the term shall only apply to the unit. In this Law, the term is also applicable to psychoneurological facilities...” Article 13 “The parameters of a patient’s health care shall be determined by a psychiatrist, seeking to ensure that the terms of their treatment and nursing offer the least restrictive environment possible. The actions of a mentally ill person may be subject to restrictions only provided that the circumstances specified in section 27 of this Law are manifest. A note to that effect must be promptly made in the [patient’s] clinical record.” Article 19 “In emergency cases, in seeking to save a person’s life when the person himself is unable to express his will and his life is seriously endangered, necessary medical care may be taken without the patient’s consent. Where instead of a patient’s consent, the consent of his representative is required, the necessary medical care may be provided without the consent of such person provided that there is insufficient time to obtain it in cases where immediate action is needed to save the life of the patient. In those cases when urgent action must be taken in order to save a patient’s life, and the consent of the patient’s representative must be obtained in lieu of the patient’s consent, immediate medical aid may be provided without the said consent, if there is not enough time to obtain it.” 69. Article 24 of the Law on Mental Health Care stipulated that if a patient applied with a request to be hospitalised, he or she could be hospitalised only provided that: 1) at least one psychiatrist, upon examining the patient, recommended that he or she had to be treated as an inpatient at a mental health facility; 2) he or she had been informed about his or her rights at a mental health facility, the purpose of hospitalisation, the right to leave the psychiatric facility and restrictions on the right, as specified in Article 27 of the law. The latter provision read that a person who was ill with a severe mental illness and refused hospitalisation could be admitted involuntarily to the custody of the hospital only if there was real danger that by his or her actions he or she was likely to commit serious harm to his or her health or life or to the health or life of others. When the circumstances specified in Article 27 of that law did exist, the patient could be involuntarily hospitalised and given treatment in a mental health facility for a period not exceeding 48 hours without court authorisation. If the court did not grant the authorisation within 48 hours, involuntary hospitalisation and involuntary treatment had to be terminated (Article 28). 70. As concerns legal incapacity and guardianship, the Civil Code provides: Article 2.10. Declaration of incapacity of a natural person “1. A natural person who, as a result of mental illness or imbecility, is not able 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 gets over his illness or the state of his health improves considerably, the court shall reinstate his capacity. After the court judgement becomes res judicta, guardianship of the said person shall be revoked. 4. The spouse of the person, parents, adult children, a care institution or a public prosecutor shall have the right to request the declaration of a person’s incapacity by filing a declaration to the given effect. They shall also have the right to apply to the courts requesting the declaration of a person’s capacity.” Article 3.238. Guardianship “1. Guardianship shall be established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person. 2. Guardianship of a person subsumes guardianship of the person’s property, but if necessary, an administrator may be designated to manage the person’s property.” Article 3.240. Legal position of a guardian or curator “1. Guardians and curators shall represent their wards under law and shall defend the rights and interests of legally incapacitated persons or persons of limited active capacity without any special authorisation. 2. The guardian shall be entitled to enter into all necessary transactions in the interests and on behalf of the represented legally incapacitated ward...” Article 3.241. Guardianship and curatorship authorities “1. Guardianship and curatorship authorities are the municipal or regional [government] departments concerned with the supervision and control of the actions of guardians and curators. 2. The functions of guardianship and curatorship in respect of the residents of a medical or educational institution or [an institution run by a] guardianship (curator) authority who have been declared legally incapacitated or of limited active capacity by a court shall be performed by the respective medical or educational establishment or guardianship (curator) authority until a permanent guardian or curator is appointed...” Article 3.242. Appointment of a guardian or a curator “1. Having declared a person legally incapacitated or of limited active capacity, the court shall appoint the person’s guardian or curator without delay. ... 3. Only a natural person with legal capacity may be appointed a guardian or a curator, [and] provided he or she gives written consent to that effect. When appointing a guardian or curator, account must be taken of the person’s moral and other qualities, his or her capability of performing the functions of a guardian or curator, relations with the ward, the guardian’s or curator’s preferences and other relevant circumstances...” Article 3.243. Performance of the duties of a guardian or a curator “... 6. After the circumstances responsible for the declaration of the ward’s legal incapacity or limited active capacity [are no longer in existence], the guardian or curator shall apply to the courts for the cancellation of guardianship or curatorship. Guardianship and curatorship authorities, as well as prosecutors, shall also have a right to apply to the courts for the cancellation of guardianship or curatorship.” Article 3.277. Placing under guardianship or curatorship “1. An adult person declared legally incapacitated by the courts shall be placed under guardianship by a court judgment.” Article 3.278. Monitoring of the guardian’s or the curator’s activities “1. Guardianship and curatorship authorities shall be obliged to monitor whether the guardian/curator is fulfilling his or her duties properly.” 71. The Code of Civil Procedure stipulates that rights and interests of [disqualified] natural persons protected by law shall be defended in court by their representatives (parents, foster-parents, guardians) (Article 38 § 2). A prosecutor has the right to submit a claim to protect the public interest (Article 49). 72. Article 366 § 1 (6) of the Code of Civil Procedure provides that proceedings may be reopened if one of the parties to them was incapacitated and did not have a representative. Article 370 § 5 stipulates that when deciding upon a request that proceedings be reopened, the judge who took the decision against which the request has been lodged may not participate. 73. An application to declare a person legally incapacitated may be submitted by a spouse of that person, his or her parents or full-age children, a guardianship/care authority or a public prosecutor (Article 463). The parties to the proceedings for incapacitation consist, besides the applicant, of the person whose legal capacity is at issue, as well as the guardianship (care) authority. If it is impossible, due to the state of health, confirmed by an expert opinion, of the natural person whom it has been requested to declare incapacitated, to call and question him or her in court or to serve him or her with court documents, the court shall hear the case in the absence of the person concerned (Article 464 §§ 1 and 2). 74. Article 491 § 2 of the Code of Civil procedure stipulates that the courts are obliged to take all measures necessary to ensure that the rights and interests of persons who need guardianship are protected. 75. Pursuant to Article 507 § 3 of the Code of Civil Procedure, a case concerning the establishment of guardianship and the appointment of a guardian shall be heard by means of oral proceedings. The guardianship authority, the person declared incapacitated, the person recommended to be appointed as guardian and any parties interested in the outcome of the case must be notified of the hearing. The case is to be heard with the attendance of a representative of the guardianship authority, who is to submit the authority’s opinion to the court. The person to be appointed the guardian must also attend. The person declared incapacitated is entitled to give his or her opinion at the hearing, if his or her health allows, as regards the prospective appointment of the guardian. The court may hold that it is necessary that the person declared incapacitated attend the hearing. Article 507 § 4 provides that in appointing a guardian his moral and other qualities, his capability to perform the functions of a guardian, his relationship with the person who requires guardianship, and, if possible, the wishes of the person who requires guardianship or care shall be taken into consideration. 76. The Law on Prosecutor’s Office provides that prosecutors have the right to protect the public interest, either on their own initiative or if the matter has been brought to their attention by a third party. In so doing, prosecutors may institute civil or criminal proceedings. 77. In a ruling of 9 June 2003 the Supreme Court stated that a public prosecutor could submit an application for reopening of proceedings, if the court’s decision had been unlawful and had infringed the rights of a legally incapacitated person having limited opportunity to defend his or her rights or lawful interests. 78. The Law on Social Services provides that the basic goal of social services is to satisfy the vital needs of an individual and, when an individual himself is incapable of establishing such conditions, to create living conditions for him that do not debase his dignity (Article 2 (2)). 79. The Requirements for residential social care institutions and the Procedure for admission of persons thereto, approved by Order No. 97 of the Minister of Social Security and Labour on 9 July 2002 and published in State Gazette ( Valstybės žinios ) on 31 July 2002, regulate the methods of admission to a social care institution. The rules provide that an individual is considered to be eligible for admission to such an institution, inter alia, if he or she suffers from mental health problems and therefore is not able to live on his or her own. The need for care is decided by the municipal council of the place of his or her residence in cooperation with the founder of the residential care institution (the county governor). Individuals are admitted to care institutions in the event that the provision of social services at their home or at a non-statutory care establishment is not possible. A guardian who wishes to have a person admitted to a residential care institution must submit a request in writing to the social services department of the relevant municipal council. The reasons for and motives behind admission must be indicated. An administrative panel of the municipal council, comprising at least three persons, is empowered to decide on the proposed admission. Representatives of the institution to which the person is to be admitted as well as the founder (the governor) must participate. 80. The Government submitted to the Court an application by the Kėdainiai Home of 6 October 2009 to the Kaunas City District Court for the restoration of capacity ( dėl neveiksnumo panaikinimo ) of an individual, G.P. The Kėdainiai Home had been G.P.’s guardian. The director of the Kėdainiai Home had noted that after G.P.’s condition had become better and he had become more independent, it had accordingly become necessary for the court to order a fresh psychiatric examination and make an order restoring G.P.’s legal capacity. 81. The Bylaws of the Kėdainiai Home ( Kėdainių pensionato gyventojų vidaus tvarkos taisyklės ), as approved by an order of the director dated 17 March 2003, provide that the institution shall admit adults who suffer from mental health problems and are in need of care and medical treatment. A patient may leave the institution for up to ninety days per year, but only to visit his or her court-appointed guardian. The duration and conditions of such leave must be confirmed in writing. The rules also stipulate that a patient is not allowed to leave the grounds of the facility without informing a social worker. If a patient decides to leave the Kėdainiai Home on his or her own, the management must immediately inform the police and facilitate finding him or her. A patient may be visited by relatives and guardians. Other visitors are allowed only upon the management’s approval. The patients may have personal mobile phones. They may follow a religion, attend church services and receive magazines. 82. In a ruling of 11 September 2007 in civil case No. 3K-3-328/2007, the Supreme Court noted that the person whom it is asked to declare incapacitated is also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure). As a result, he or she enjoys the rights of an interested party, including the right to be duly informed of the place and time of any hearing. The fact that the case had been heard in the absence of D.L. – the person whom the court had been asked to declare incapacitated – was assessed by the Supreme Court as a violation of her right to be duly informed of the place and time of court hearings, as well as of other substantive procedural rights safeguarding her right to a fair trial. The Supreme Court 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, as well as D.L.’s right to appeal against the decision to declare her incapacitated, because the decision had not been delivered to 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 85 below), stating that the person concerned should have the right to be heard in any proceedings which could affect his or her 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 a 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 ( Golder, Winterwerp, both cited below, and Lacárcel Menéndez v. Spain, no. 41745/02, 15 June 2006). 83. In the same ruling, the Supreme Court also emphasised that determining whether the person can understand his or her actions was not only a scientific conclusion, namely that of forensic psychiatry. It was also a question of fact which should be established by the court upon assessing all other evidence and, if necessary, upon hearing expert evidence. Taking into consideration the fact that the declaration of a person’s incapacity is a very serious interference into his or her right to private life, one can only be declared incapacitated in exceptional cases. III. RELEVANT INTERNATIONAL DOCUMENTS 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) 84. This Convention entered into force on 3 May 2008. It was signed by Lithuania on 30 March 2007 and ratified on 18 August 2010. 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) 85. 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 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 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. The 25 June 2009 report on visit to Lithuania by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), visit from 28 to 30 April 2008 86. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency. Part C of the report (paragraphs 120, 125-132) analyses situation in the Skemai Residential Care Home. 87. The CPT noted that Lithuanian legislation does not provide for an involuntary placement procedure in social welfare establishments. At Skemai Residential Care Home, residents were admitted on their own application or that of their guardian through the competent district authority (Panevėžys District Administration). The decision on the placement was taken by the social affairs unit of Panevėžys District Administration on the basis of a report drawn up by a social worker and a medical certificate issued by a psychiatrist stating that the applicant’s mental health permitted his/her placement in a social welfare institution of this type. An agreement was then signed between the applicant and the authorised representative of the local government for an indefinite period. That said, it appeared that even legally competent residents admitted on the basis of their own application were not always allowed to leave the home when they so wished. The delegation was informed that their discharge could only take place by decision of the social affairs unit of the Panevėžys District Administration. This was apparently due to the need to ascertain that discharged residents had a place and means for them to live in the community; nevertheless, this meant that such residents were de facto deprived of their liberty (on occasion for a prolonged period). 88. Specific reference was made to the situation of residents deprived of their legal capacity. Such persons could be admitted to the Skemai Home solely on the basis of the application of their guardian. However, they were considered to be voluntary residents, even when they opposed such a placement. In the CPT’s view, placing incapacitated persons in a social welfare establishment which they cannot leave at will, based solely on the consent of the guardian, entailed a risk that such persons will be deprived of essential safeguards. 89. It was also a matter of concern that all 69 residents who were deprived of their legal capacity were placed under the guardianship of the Home. In this connection, the delegation was surprised to learn that in the majority of these cases, the existing guardianship arrangements had been terminated by a court decision upon admission to the establishment and guardianship of the person concerned entrusted to the Home. The CPT stressed that one aspect of the role of a guardian is to defend the rights of incapacitated persons vis-à-vis the hosting social welfare institution. Obviously, granting guardianship to the very same institution could easily lead to a conflict of interest and compromise the independence and impartiality of the guardian. The CPT reiterated its recommendation that the Lithuanian authorities strive to find alternative solutions which would better guarantee the independence and impartiality of guardians. 90. In the context of discharge from psychiatric institution procedures, the CPT recommended that the Lithuanian authorities took steps to ensure that forensic patients were heard in person by the judge in the context of judicial review procedures. For that purpose, consideration may be given to the holding of hearings at psychiatric institutions 91. Lastly, the CPT found that at the establishment visited the existing arrangements for contact with the outside world were generally satisfactory. Patients/residents were able to send and receive correspondence, have access to a telephone, and receive visits. THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS A. The parties’ submissions 92. The Government argued, first, that the present application had been entirely based on knowingly untrue facts and therefore should be declared inadmissible for “abuse of the right of individual petition”, pursuant to Article 35 § 3 of the Convention. For the Government, the content of the present application was contrary to the purpose of the right of individual application, as the information provided therein was untrue or insidious. An appropriate and carefully selected form of social care for the applicant had been portrayed as detention. Appropriate medical care and striving to save her life had been presented as her torture. The facts concerning the reopening of the guardianship proceedings were also untrue, as well as those related to the applicant’s complaints of the alleged refusal of the Kėdainiai Home’s management to allow the applicant to have personal visits and of the censorship of her communications. 93. Alternatively, the Government submitted that the application had been prepared in its entirety and lodged by D.G. and not by the applicant. They held highly critical views of D.G., claiming that she had been “not only deceiving the Court but also harming a vulnerable, mentally-ill person”. The Government contended in the present case that the term “applicant” referred to D.D. only in a formal sense, as in reality the person whose will the application reflected had been D.G., and, moreover, that will had clearly contradicted the interests of D.D., who had been misled and manipulated by D.G. It followed that the application as a whole was incompatible ratione personae with the provisions of the Convention. 94. The applicant’s lawyer considered that the Government’s allegation of factual inaccuracy was best understood by reference to the fact that the parties to this application held diametrically opposed perspectives in relation to the facts presented. Both the applicant and the Government saw the same facts in a totally different light and held incompatible views on the way in which the rights of persons with psychosocial disabilities should be respected under the Convention. 95. As to the Government’s second argument, the applicant’s lawyer submitted that the application had been lodged with D.D.’s fully-informed consent. D.D. had been keenly aware of the proceedings and had spoken of them frequently. Attention had to be drawn to the vulnerability and isolation of persons in the applicant’s position, as well as the fact that domestic legislation had denied her legal standing to initiate any legal proceedings whatsoever. Consequently, it was ironic that the Government had not recognised D.D.’s ability to represent herself in domestic proceedings, requiring by law that she did so via another person, but that before the Court the Government seemed to insist that the applicant should act alone. Lastly, the applicant’s lawyer pointed out that D.G. was the applicant’s closest friend, former psychotherapist and her first guardian. Moreover, since 8 January 2008 the applicant had been represented before the Court by a legal team. B. The Court’s assessment 96. The Court first turns to the Government’s objection as to the applicant’s victim status, and, in particular, their allegation that the application does not express the true will of D.D. In this connection, it recalls that the existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Poznanski and Others v. Germany, (dec.), no. 25101/05, 3 July 2007). 97. Having regard to the documents presented, the Court notes that the original application form bears D.D.’s signature, without any indication that that signature could be forged (see, by converse implication, Poznanski, cited above). In paragraph 13 of the application, D.D. wrote that back in 2000, on her adoptive father’s initiative, she had been unlawfully declared incapacitated and in 2004 admitted to the Kėdainiai Home “for an indefinite duration”. She asked that, for the purposes of the proceedings before this Court, her adoptive father not be considered her legal representative, requesting that D.G. take on that role. After the application was communicated to the Government, the applicant was reminded that, in accordance with paragraph 4 (a) of Rule 36 of the Rules of Court, she had to designate a legal representative, which she did by appointing a lawyer, Mr H. Mickevičius. In his observations in reply to those of the Government, the applicant’s lawyer followed the initial complaints as presented by D.D. In the light of the above, the Court holds that D.D. has validly lodged an application in her own name and thus has the status of “victim” in respect of the complaints listed in her application. The Government’s objection as to incompatibility ratione personae should therefore be dismissed. 98. The Court further considers that the Government’s objection as to the applicant’s alleged abuse of the right to petition, on account of allegedly incorrect information provided in her application form, is closely linked to the merits of her complaints under Articles 3, 5, 6, 8 and 9 of the Convention. The Court thus prefers to join the Government’s objection to the merits of the case and to examine them together. 99. Lastly, the Court observes that the applicant submitted several complaints under different Convention provisions. Those complaints relate to the proceedings concerning her involuntary admission to a psychiatric institution, the appointment of her guardian, her inability to receive personal visits, interference with her correspondence, involuntary medical treatment, and so forth. Whilst noting that the complaint as to the initial appointment of a guardian has been raised outside the six months time-limit (see paragraph 19 above), the Court sees fit to start with the complaint related to the court proceedings for a change of her legal guardian and then to examine the applicant’s admission to the Kėdainiai Home and the complaints stemming from it. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE PROCEEDINGS FOR A CHANGE OF LEGAL GUARDIAN 100. The applicant complained that she had not been afforded a fair hearing in respect of her application for reopening of her guardianship proceedings and had not been able to have her legal guardian changed. In support of her complaints, the applicant cited Articles 6 § 1 and 8 of the Convention. In addition, relying upon Article 13 of the Convention, the applicant argued that she had not been afforded an effective remedy to complain of the alleged violations. The Court considers that the applicant’s complaints fall to be examined under of Article 6 § 1 of the Convention, which, in so far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Submissions by the parties 1. The applicant 101. The applicant submitted that the blanket ban on her right of access to court went to the heart of her right to a fair hearing and had been in breach of Article 6 § 1 of the Convention. She pointed out that on 15 September 2000 she had been declared incapacitated during proceedings that had been initiated by her adoptive father. Solely on the basis of the medical report of 19 July 2000, the Kaunas City District Court had deemed that the applicant was not to be summoned. As a result she had not taken part in those proceedings. The local authority, whose presence had been obligatory, had not made a significant contribution during the hearing and had endorsed the conclusions of the medical report. The Kaunas District Court had not provided any reasons for its decision, other than reiterating the conclusions of the forensic experts. The district court had chosen not to assess other evidence which could have potentially shed light on the applicant’s circumstances, such as that which could have arisen by summoning the applicant or other witnesses, or by questioning the authors of the psychiatric report in person. The judge had not found it necessary to examine whether any ulterior reasons had underlain the incapacitation request. 102. The applicant argued, further, that she had not been given the opportunity to participate in any of the guardianship proceedings. She had never been notified of or summoned to any of the four sets of proceedings concerning the appointment or discharge of her guardian/property administrator. For the applicant, there had been no medical or other reasons relating to her health that would have precluded her from participating. Nonetheless, the courts had invariably based their decisions on the views of the local authority without examining the personal circumstances of the applicant. The proceedings had been very summary in nature, the hearings had been brief and the rationale underpinning judgments had been almost non-existent. On 15 September 2000 the Kaunas City District Court had appointed her adoptive father as her guardian without any involvement on her part. As a result, not only had she been unable to object to his appointment, but she had also been barred from appealing against that decision. 103. The applicant emphasised that the review proceedings in 2005 initiated by her with the assistance of D.G. had been the only opportunity that she had ever had to put her point of view across before a court of law. On this occasion, she had personally addressed the Kaunas City District Court on a number of issues of the utmost importance to her, such as her incapacitation, the identity of her guardian and her admission to an institution. However, the district court had chosen to dismiss her action on narrow procedural grounds. 104. The applicant’s main objection with regard to the review proceedings lay in the district court’s decision to turn down her express request to be provided with independent legal aid. The explanation that the applicant was already represented by her guardian’s lawyer had misunderstood the competing interests of the two parties. The effect had been to severely prejudice the ability of the applicant to engage with the procedural aspects of the hearing on which the district court’s decision had turned. 105. Lastly, the applicant argued that she had been financially able to afford to employ a lawyer to represent her at that or any other of the hearings. However, she had been denied access to her own money, and at many of the hearings her interests and those of the person with control over her funds had been divergent. She concluded that in view of her vulnerable position, the procedural complexity of the proceedings and the high stakes thereof, Article 6 § 1 of the Convention had required that she be provided with free legal aid. 2. The Government 106. As to the applicant’s complaint that she had not been afforded a fair hearing in relation to her request that the proceedings by which her guardian was appointed be reopened, the Government referred to the Court’s case ‑ law to the effect that the right of access to court is not absolute and that the States have a certain margin of appreciation in assessing what might be the best policy in this field ( Golder v. the United Kingdom, 21 February 1975, § 38, Series A no. 18). That was especially true as regards persons of unsound mind, and the Convention organs had acknowledged that such restrictions were not in principle contrary to Article 6 § 1 of the Convention, where the aim pursued was legitimate and the means employed to achieve that aim were proportionate ( G.M. v. the United Kingdom, no. 12040/86, Commission decision of 4 May 1987, Decisions and Reports (DR) 52, p. 269). 107. Turning to the particular situation of the applicant, the Government noted that domestic law did not allow a legally incapacitated person to lodge a petition seeking that his or her guardianship be changed. As the applicant had deemed that her adoptive father was not a suitable person to be her guardian, the authorities responsible for oversight of guardians (the Social Services Department of Kaunas City Council) or a public prosecutor could have submitted an application for reopening of the proceedings. Nevertheless, the Kaunas City District Court had accepted the applicant’s request for reopening for examination and on 7 November 2005 had reviewed her case with a high degree of care. 108. The hearing of 7 November 2005 at the Kaunas City District Court had taken place in the presence of the applicant, her guardian (her adoptive father) and his lawyer, and D.G., as well as in the presence of the representatives of the relevant State authorities. Whilst admitting that at that hearing the applicant had asked to be assisted by a separate lawyer, the Government submitted that the court had not been able to grant the applicant’s request because of the decision of 15 September 2000 declaring her legally incapacitated. Even so, the applicant’s interests had been defended by the representative of the Kėdainiai Home, the representative of the Social Services Department and the public prosecutor. 109. The Government contended that during the hearing of 7 November 2005 the applicant had not sustained her request that D.G. be appointed as her new guardian. Contrary to what the applicant had stated to the European Court, in her submissions at the hearing at issue she had agreed to keep her adoptive father as her guardian, saying that she loved him, but had expressed her wish to be released from the Kėdainiai Home. For the Government, it appeared from the transcript of the hearing that this statement had been made by the applicant before the break, but not after, contrary to her allegation of being “threatened with restraint” for disobedience. 110. The Government pointed out that, pursuant to Article 507 § 3 of the Code of Civil Procedure, the appointment of a guardian required to be heard in the presence of a representative of the authority overseeing guardians, who was required to submit the authority’s conclusions to the court, and the person to be appointed as guardian. Given that both of these persons had taken part in the hearing of 21 January 2004, the Kaunas City District Court in its decision of 17 November 2005 had reasonably found that the applicant had been properly represented at the hearing of 21 January 2004, and thus the provision on which the applicant had based her request to reopen the proceedings had not been breached. 111. Lastly, in their observations of 15 September 2008 the Government noted that as regards incapacitation proceedings the ministries had prepared legislative amendments to the Civil Code and the Code of Civil Procedure, which would be submitted to Parliament. The proposed amendments provide for compulsory representation of a person facing incapacitation proceedings before a court by a lawyer. In the light of the preceding arguments, the Government considered that the applicant’s complaint was manifestly ill-founded. 3. The intervening parties 112. The representatives of Harvard Law School submitted that in all cases a court or other judicial authority must ensure that a representative acts solely in the interests of the incapacitated person. In any case in which it is objectively apparent that the person being represented does not accept or assent to the steps taken by a representative, those matters must be explored by the judicial authorities. The judicial authorities must exercise thorough, additional supervision in all cases in which there is a filter between a person and a court, such as when a person is represented by another individual. This remains true even where the representative was appointed by a court. 113. The European Group of National Human Rights Institutions noted that the European Convention on Human Rights guaranteed rights and freedoms that must be protected regardless of an individual’s level of capacity. They also saw it important to mention the Court’s judgment in Winterwerp v. the Netherlands (24 October 1979, Series A no. 33), where the Court concluded that although mental illness may render legitimate certain limitations upon the exercise of the “right to access to court”, it could not warrant the total absence of that right as embodied in Article 6 § 1. B. The Court’s assessment 1. Admisibility 114. The parties did not dispute the applicability of Article 6, under its “civil” head, to the proceedings at issue, and the Court does not see any reason to hold otherwise (see Winterwerp, cited above, § 73, and Matter v. Slovakia, no. 31534/96, § 51, 5 July 1999). 115. The Court notes that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. 2. Merits (a) General principles 116. 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, 17 January 2012 and the case-law cited therein). Therefore, in deciding whether the proceedings in the present case for the reopening of the guardianship appointment were “fair”, the Court will have regard, mutatis mutandis, to its case-law under Article 5 § 1 (e) and Article 5 § 4 of the Convention. 117. 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). 118. The Court accepts that there may be situations where a person deprived of legal capacity is entirely unable to express a coherent view or give proper instructions to a lawyer. 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 and thus of coming into conflict with the guardian. In such cases, when the conflict potential has a major impact on the person’s legal situation, such as when there is a proposed change of guardian, 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, mutatis mutandis, Winterwerp, cited above, § 60). 119. The Court reiterates that the key principle governing the application of Article 6 is fairness. Even in cases where an applicant appears in court notwithstanding lack of assistance by a lawyer and manages to conduct his or her case in the face of all consequent difficulties, the question may nonetheless arise as to whether this procedure was fair (see, mutatis mutandis, McVicar v. the United Kingdom, no. 46311/99, §§ 50-51, ECHR 2002-III). The Court also recalls 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 120. Turning to the circumstances of the instant case, the Court again notes that it cannot examine the applicant’s initial placement under guardianship (see paragraph 99 above). Even so, the Court cannot overlook the fact that back in 2000 the applicant did not participate in the court proceedings for her incapacitation. In particular, nothing suggests that the court notified the applicant of its own accord of the hearing at which her personal autonomy in almost all areas of life was at issue, including the eventual limitation of her liberty (see paragraph 12 above). Furthermore, as transpires from the decision of the Kaunas City District Court of 15 September 2000, it ruled exclusively on the basis of the medical panel’s report, without having summoned the medical experts who authored the report for questioning. Neither did the court call to testify any other witnesses who could have shed some light as to the personality of the applicant. Accordingly, the applicant was unable to participate in the proceedings before the Kaunas City District Court in any form. Given that the potential finding of the applicant being of unsound mind was, by its very nature, largely based on the applicant’s personality, her statements would have been an important part of the applicant’s presentation of her case, and virtually the only way to ensure adversarial proceedings (see, mutatis mutandis, Kovalev v. Russia, no. 78145/01, §§ 35-37, 10 May 2007; also see Principle 13 of the Recommendation No. R (99) 4 by the Council of Europe). 121. The Court also notes that on 21 January 2004 the Kaunas City District Court appointed the applicant’s adoptive father as her legal guardian. The applicant was again not summoned because the court apparently considered her attendance to be unnecessary. 122. Next, the Court turns to the proceedings regarding the change of the applicant’s guardianship in 2005. The Court notes that there is no indication that at that moment in time the applicant was suffering from an incapacity of such a degree that her personal participation in the proceedings would have been meaningless. Although health care officials had considered that her involvement in the proceedings relating to her initial placement under guardianship in 2000 was unnecessary, as she had apparently been unable to provide them with an objective opinion (see paragraph 11 above), she did in fact participate in the hearing relating to the change of guardian on 7 November 2005. Indeed, she not only stated unequivocally that she maintained her request that the guardianship proceedings be reopened and asked to be assisted by a lawyer but also made a number of other submissions about the proceedings and expressed a clear view on various matters. In particular, the applicant emphasised that she had not been summoned to the hearing during which her adoptive father had been appointed her guardian. She also expressed her desire to leave the Kėdainiai Home. Taking into account the fact that the applicant was an individual with a history of psychiatric troubles, and the complexity of the legal issues at stake, the Court considers that it was necessary to provide the applicant with a lawyer. 123. The Government argued that the Kaunas City District Court’s finding that the applicant, who lacked legal capacity, had been properly represented by her adoptive father’s lawyer had been correct and in compliance with domestic law. However, the crux of the complaint is not the legality of the decision under domestic law but the “fairness” of the proceedings from the standpoint of the Convention and the Court’s case ‑ law. 124. As emerges from the materials before the Court, the relationship between the applicant and her adoptive father has not always been positive. Quite the contrary, on numerous occasions the applicant had contacted State authorities claiming that there was a dispute between the two of them, which culminated in her being deprived of legal capacity and her liberty (see paragraphs 32, 33 and 60 above). What is more, the social services had also noted disagreement between the applicant and her adoptive father (see paragraph 18 above). Lastly, on at least one occasion the applicant’s adoptive father had himself acknowledged their strained relationship (see paragraph 14 above). Accordingly, the Court finds merit in the applicant’s argument that, because of the conflicting interests of her and her legal guardian, her guardian’s lawyer could in no way have represented her interests properly. In the view of the Court, the interests of a fair hearing required that the applicant be granted her own lawyer. 125. The Government suggested that a representative of the social services and the district prosecutor attended the hearing on the merits, thus protecting the applicant’s interests. However, in the Court’s opinion, their presence did not make the proceedings truly adversarial. As the transcript of the hearing of 7 November 2005 shows, the representatives of the social services, the prosecutor, the doctors from the Kėdainiai Home and the Kaunas Psychiatric Hospital clearly supported the position of the applicant’s adoptive father – that he should remain D.D.’s legal guardian. 126. Finally, the Court recalls that it must always assess the proceedings as a whole (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). In particular, and turning to the spirit in which the hearing of 7 November 2005 was held, the Court notes that the judge refused a request by D.G. that an audio recording be made. Be that as it may, the Court is not able to overlook the applicant’s complaint, although denied by the Government, that the judge did not allow her to sit near D.G., the only person whom the applicant trusted. Neither can the Court ignore the allegation that during the break the applicant was forced to leave the hearing room and to go to the judge’s office, after which measure the applicant declared herself content (see paragraphs 41 and 42 above). Against this background, the Court considers that the general spirit of the hearing further compounded the applicant’s feelings of isolation and inferiority, taking a significantly greater emotional toll on her than would have been the case if she would have had her own legal representation. 127. In the light of the above considerations and taking into account the events that preceded the examination of the applicant’s request for reopening of her guardianship proceedings, the Court concludes that the proceedings before the Kaunas City District Court on 7 November 2005 were not fair. Accordingly, the Government’s preliminary objection of abuse of application must be dismissed. The Court holds that there has been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 128. Under Article 5 § 1 of the Convention the applicant complained that her involuntary admission to the Kėdainiai Home had been unlawful. Article 5, in so far as relevant, 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: ... (e) the lawful detention of persons ... of unsound mind...” A. Submissions by the parties 1. The applicant 129. The applicant maintained her claims. She alleged that her involuntary admission to the Kėdainiai Home after 2 August 2004 had amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. 130. With regard to the objective element of her complaint, the applicant argued that her liberty had been restricted on account of her complete confinement and the extreme degree of control over her daily life. The applicant, like other residents, had not been able to leave the grounds of the Kėdainiai Home. If a resident left without permission, the director was bound to inform the police immediately. The applicant had tried to abscond twice, in 2006 and 2007, only to be brought back by the police. Furthermore, the applicant had been entirely under the control of staff at the institution, who had been able to medicate her by force or coercion, place her in isolation or tie her down, as exemplified by the incident of 25 January 2005. According to the findings of the Prosecutor’s Office, on that day the applicant had been tied down to a bed in the isolation room and forcibly medicated, in contravention of the internal rules of the institution. It would be plain upon visiting the Kėdainiai Home that the vast majority of residents are heavily medicated. 131. Further, the applicant complained that all aspects of her life are controlled by the staff. Although in theory she is allowed to receive visits from people outside the institution, this right is subject to approval from the director. Upon her admission to the Kėdainiai Home in 2004, all visits other than those from her guardian had been restricted for a lengthy period of time. The applicant submitted that she cannot decide whether or when to stay in bed, there is a limited range of activities for her to take part in, she is not free to make routine choices like other adults – for example, about her diet, daily activities and social contacts. She is subject to constant supervision. 132. With respect to the subjective element of her complaint, the applicant noted that her case was diametrically opposite to that of H.M. v. Switzerland (no. 39187/98, § 47, ECHR 2002-II), where the applicant had agreed to her admission to a nursing home. In the present case, the applicant’s views had not been sought, either at the time of her admission or during her continued involuntary placement in the Kėdainiai Home. However, under Lithuanian law it had, in fact, been irrelevant whether she had consented or not to her detention, because an individual lacking legal capacity and placed under guardianship becomes a non-entity under the law and loses the capacity to take any decisions. Even so, whilst she had been incapable de jure, she had still, in fact, been capable of expressing her consent. She had expressed strong objections about her continued involuntary admission to the institution, most emphatically by running away twice, in her arguments before the domestic court, in her correspondence with various State authorities and, finally, by submitting a complaint to the Court. 133. In sum, the applicant’s involuntary admission to and continued residence in the Kėdainiai Home after 2 August 2004 constituted a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. 134. Lastly, the applicant submitted that her admission to the Kėdainiai institution was not lawful. The authorities involved in placing her in a psychiatric institution or those supervising the guardian’s activities failed to consider whether other less restrictive community-based arrangements would have been more suitable to address the applicant’s mental health problems. Instead they simply acquiesced in the guardian’s request to have the applicant placed in an institution. Most importantly, the applicant was excluded from this decision-making process altogether. Consequently, the applicant saw her detention as arbitrary, in contradiction with Article 5 § 1 (e) of the Convention. 2. The Government 135. The Government argued, first, that Article 5 of the Convention was not applicable to the instant case. They submitted that the Kėdainiai Home was an institution for providing social services and not forced treatment under a regime corresponding to that of a psychiatric institution. Whilst admitting that certain medical services continued to be provided in the Kėdainiai Home, the institution at issue was not primarily used for the purposes of hospitalisation or medical treatment. Having regard to the fact that the Kėdainiai Home had to take care of adults suffering from mental health problems, it followed that the limited restrictions on the applicant had corresponded to the nature of the facility and had been no more than normal requirements ( Nielsen v. Denmark, 28 November 1988, § 72, Series A no. 144). 136. Turning to the particular situation of the applicant, the Government submitted that until September 2007 the applicant had lived in a part of the Kėdainiai Home called “Apytalaukis”, which had been an open facility. Although its grounds had been fenced, the gates had not been locked and residents had been able to leave the territory as they wished. The doors of the building had stayed unlocked. The same conditions had remained after the applicant’s resettlement, except that the grounds had not even been fenced. According to the personnel of the Kėdainiai Home, the applicant had not always adhered to the internal rules of the institution and had failed to inform the staff before leaving the grounds and going for a walk. Even so, this had neither been considered as absconding, nor had the applicant been sanctioned in any way. Also, similarly to the facts in H.M. v. Switzerland (cited above), and with the exception of the incident of 25 January 2005, the applicant had never been placed in a secure ward. Moreover, she had been free to maintain personal contacts, to write and receive letters, to practise her religion and to make phone calls. 137. As to the medical treatment the applicant had received in the Kėdainiai Home, the Government submitted that, except for the incident of 25 January 2005, she had not been forcefully medicated. Each time she had been required to take medicine a psychiatrist had talked to her and had explained the need for treatment. There had been periods when the applicant had refused to take medicine; those periods had always been followed by the deterioration of her mental health. However, after some time the applicant had usually accepted the doctors’ arguments and had agreed to continue treatment. The social and medical care she had received in the Kėdainiai Home had had a positive effect on the applicant, because her mental state had stabilised. Since her admission to the Kėdainiai Home she had never been hospitalised, whereas prior to that she had used to be hospitalised at least once a year. In sum, the limited restrictions to which the applicant had been subjected in the Kėdainiai Home had all been necessary due to the severity of her mental illness, had been in her interests and had been no more than the normal requirements associated with the responsibilities of a social care institution taking care of inhabitants suffering from mental health problems. 138. The Government also noted that the admission of the applicant to the Kėdainiai Home had stemmed from her guardian’s decision and not from a decision of the State or the municipal authorities. The applicant’s adoptive father, as her guardian, had been empowered to act on her behalf and with the aim of exercising and protecting her rights and interests. In addition, the involvement of the municipal and State authorities in examining the applicant’s situation and state of mind had played an important role in verifying the best interests of the applicant and had provided necessary safeguards against any arbitrariness in the guardian’s decisions. 139. Turning to the subjective element of the applicant’s case, the Government submitted that the applicant was legally incapacitated and had thus lacked the decision-making capacity to consent or object to her admission. Her guardian and not the authorities had been able to decide on her place of residence. 140. In the light of the above considerations, the Government argued that this part of the application was incompatible ratione materiae with Article 5 § 1 of the Convention. 141. Alternatively, should the Court find that Article 5 § 1 was applicable to the applicant’s complaints, the Government contended that they were not founded. The applicant’s admission to the Kėdainiai Home had been lawful, given that it had been carried out in accordance with the procedure established by domestic law. Under the law, a person can be admitted to an institution at the request of the guardian, provided that the person is suffering from a mental disorder. The applicant was admitted to the hospital at the request of her official guardian in relation to a worsening of her mental condition. Furthermore, in the view of the Government, the involvement of the authorities in the procedure for the applicant’s admission had provided safeguards against any possible abuses. 142. In the further alternative, the Government submitted that even if the restrictions on the applicant’s movement could be considered as falling within Article 2 of Protocol No. 4 to the Convention, those restrictions had been lawful and necessary. B. The Court’s assessment 1. Admissibility 143. The Government argued that the conditions in which the applicant is institutionalised in the Kėdainiai Home are not so restrictive as to fall within the meaning of “deprivation of liberty” as established by Article 5 of the Convention. However, the Court cannot subscribe to this thesis. 144. It reiterates that in order to determine whether there has been a deprivation of liberty, the starting point must be the concrete situation of the individual concerned. Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Ashingdane v. the United Kingdom, 28 May 1985, § 41, Series A no. 93). 145. The Court further recalls that the notion of deprivation of liberty within the meaning of Article 5 § 1 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, mutatis mutandis, H.M. v. Switzerland, cited above, § 46). 146. In the instant case the Court observes that the applicant’s factual situation in the Kėdainiai Home is disputed. Be that as it may, the fact whether she is physically locked in the Kėdainiai facility is not determinative of the issue. In this regard, the Court notes its case-law to the effect that a person could be considered to have been “detained” for the purposes of Article 5 § 1 even during a period when he or she was in an open ward with regular unescorted access to unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see H.L. v. the United Kingdom, no. 45508/99, § 92, ECHR 2004-IX). As concerns the circumstances of the present case, the Court considers that the key factor in determining whether Article 5 § 1 applies to the applicant’s situation is that the Kėdainiai Home’s management has exercised complete and effective control by medication and supervision over her assessment, treatment, care, residence and movement from 2 August 2004, when she was admitted to that institution, to this day (ibid., § 91). As transpires from the rules of the Kėdainiai Home, a patient therein is not free to leave the institution without the management’s permission. In particular, and as the Government have themselves admitted in their observations on the admissibility and merits, on at least one occasion the applicant left the institution without informing its management, only to be brought back by the police (see paragraph 29 above). Moreover, the director of the Kėdainiai Home has full control over whom the applicant may see and from whom she may receive telephone calls (see paragraph 81 above). Accordingly, the specific situation in the present case is that the applicant is under continuous supervision and control and is not free to leave (see Storck v. Germany, no. 61603/00, § 73, ECHR 2005-V). Any suggestion to the contrary would be stretching credulity to breaking point. 147. Considerable reliance was placed by the Government on the Court’s judgment in H. M. (cited above), in which it was held that the placing of an elderly applicant in a foster home in order to ensure necessary medical care as well as satisfactory living conditions and hygiene did not amount to a deprivation of liberty within the meaning of Article 5 of the Convention. However, each case has to be decided on its own particular “range of factors” and, while there may be similarities between the present case and H.M., there are also distinguishing features. In particular, it was not established that H.M. was legally incapable of expressing a view on her position. She had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay, in plain contrast to the applicant in the instant case. Further, a number of safeguards – including judicial scrutiny – were in place in order to ensure that the placement in the nursing home was justified under domestic and international law. This led to the conclusion that the facts in H.M. were not of a “degree” or “intensity” sufficiently serious to justify a finding that H.M. was detained (see Guzzardi, cited above, § 93). By contrast, in the present case the applicant was admitted to the institution upon the request of her guardian without any involvement of the courts. 148. As to the facts in Nielsen, the other case relied on by the Government, the applicant in that case was a child, hospitalised for a strictly limited period of time of only five and a half months, on his mother’s request and for therapeutic purposes. The applicant in the present case is a functional adult who has already spent more than seven years in the Kėdainiai Home, with negligible prospects of leaving it. Furthermore, in contrast to this case, the therapy in Nielsen consisted of regular talks and environmental therapy and did not involve medication. Lastly, as the Court found in Nielsen, the assistance rendered by the authorities when deciding to hospitalise the applicant was “of a limited and subsidiary nature” (§ 63), whereas in the instant case the authorities contributed substantially to the applicant’s admission to and continued residence in the Kėdainiai Home. 149. Assessing further, the Court draws attention to the incident of 25 January 2005, when the applicant was restrained by the Kėdainiai Home staff. Although the applicant was placed in a secure ward, given drugs and tied down for a period of only fifteen to thirty minutes, the Court notes the particularly serious nature of the measure of restraint and observes that where the facts indicate a deprivation of liberty within the meaning of Article 5 § 1, the relatively short duration of the detention does not affect this conclusion (see X v. Germany, no. 8819/79, Commission decision of 19 March 1981, DR 24, pp. 158, 161; and Novotka v. Slovakia (dec.), no. 47244/99, 4 November 2003). 150. The Court next turns to the “subjective” element, which was also disputed between the parties. The Government argued that the applicant lacked de jure legal capacity to decide matters for herself. However, this does not necessarily mean that the applicant was de facto unable to understand her situation (see Shtukaturov v. Russia, no. 44009/05, § 108, ECHR 2008). Whilst accepting that in certain circumstances, due to severity of his or her incapacity, an individual may be wholly incapable of expressing consent or objection to being confined in an institution for the mentally handicapped or other secure environment, the Court finds that that was not the applicant’s case. As transpires from the documents presented to the Court, the applicant subjectively perceived her compulsory admission to the Kėdainiai Home as a deprivation of liberty. Contrary to what the Government suggested, she has never regarded her admission to the facility as consensual and has unequivocally objected to it throughout the entire duration of her stay in the institution. On a number of occasions the applicant requested her discharge from the Kėdainiai Home by submitting numerous pleas to State authorities and, once she was given the only possibility to address a judicial institution, to the Kaunas City District Court (see paragraphs 34 and 37 above). She even twice attempted to escape from the Kėdainiai facility (see, a fortiori, Storck, cited above, § 73). In sum, even though the applicant had been deprived of her legal capacity, she was still able to express an opinion on her situation, and in the present circumstances the Court finds that the applicant had never agreed to her continued residence at the Kėdainiai Home. 151. Lastly, the Court notes that although the applicant’s admission was requested by the applicant’s guardian, a private individual, it was implemented by a State-run institution – the Kėdainiai Home. Therefore, the responsibility of the authorities for the situation complained of was engaged (see Shtukaturov, cited above, § 110). 152. In the light of the foregoing the Court concludes that the applicant was “deprived of her liberty” within the meaning of Article 5 § 1 of the Convention from 2 August 2004 and remains so to this day. 153. 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. 2. Merits 154. The Government argued that the applicant had been admitted to the Kėdainiai Home lawfully. The Court accepts that the applicant’s involuntary admission was “lawful”, if this term is construed narrowly, in the sense of the formal compatibility of the applicant’s involuntary admission with the procedural and material requirements of domestic law (see paragraph 79 above). It appears that the only condition necessary for the applicant’s admission was the consent of her official guardian, her adoptive father, who was also the person who had initially sought the applicant’s admission to the Kėdainiai Home. 155. However, the Court reiterates that the notion of “lawfulness” in the context of Article 5 § 1 (e) has also a broader meaning. The notion underlying the term “procedure prescribed by law” is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary (see Winterwerp, cited above, § 45). 156. The Court also recalls that in Winterwerp (paragraph 39) it set out three minimum conditions which have to be satisfied in order for there to be “the lawful detention of a person of unsound mind” within the meaning of Article 5 § 1 (e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder. 157. Turning to the present case, the Court notes that just a few weeks before her placement in the Kėdainiai Home on 2 August 2004, the applicant had been admitted to and examined at the Kaunas Psychiatric Hospital (see, by converse implication, Stanev, cited above, § 156). A medical panel of that hospital concluded that at that time the applicant suffered from “continuous paranoid schizophrenia”. The doctors’ commission deemed it appropriate for the applicant to live in a “social care institution for the mentally handicapped”. The Court further observes that soon thereafter a social worker concluded that the applicant was not able to live on her own, as she could not take care of herself, did not understand the value of money, did not clean her apartment and wandered in the city hungry. The Court also notes the social worker’s testimony as to the unpredictability of the applicant’s behaviour, given that sometimes she would get angry at people and shout at them without a reason (see paragraphs 22 and 23 above). That being so and recalling the fact that the applicant had a history of serious mental health problems since 1979, the Court is ready to find that the applicant has been reliably shown to have been suffering from a mental disorder of a kind and degree warranting compulsory confinement and the conditions as defined in Wintertwerp had thus been met in her case. Furthermore, the Court also considers that no other measures were available in the circumstances. As noted by the social worker, the applicant’s adoptive father, who was her legal guardian, could not “manage” her (see paragraph 23 above). On this point the Court also takes notice of the fact that even being removed from institutional care and taken to her adoptive father’s apartment, the applicant escaped and was found by the police only three months later (see paragraph 29 above). In these circumstances the Court concludes that the applicant’s compulsory confinement was necessary (see Stanev, cited above, § 143) and no alternative measures had been appropriate in the circumstances of the case. The Court lastly observes, and it has not been disputed by the applicant, that in situations such as hers the domestic law did not provide that placement in a social care institution would be decided by a court (see, by converse implication, Gorobet v. Moldova, no. 30951/10, § 40, 11 October 2011). 158. In the light of the above, the Court cannot but conclude that the applicant’s confinement to the Kėdainiai Home on 2 August 2004 was “lawful” within the meaning of Article 5 § 1 (e) of the Convention. Accordingly, there has been no violation of Article 5 § 1. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 159. The applicant complained that she is unable to obtain her release from the Kėdainiai Home. Article 5 § 4, relied on by the applicant, provides as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Submissions by the parties 160. The applicant submitted that she had been admitted to the Kėdainiai Home upon her guardian’s request and with the authorisation of an administrative panel. The lawfulness of her involuntary hospitalisation had not been reviewed by a court, either upon her admission or at any other subsequent time. Being deprived of her legal capacity, the applicant submitted that she is prevented from independently pursuing any judicial legal remedy to challenge her continued involuntary hospitalisation. In relation to the possibility supposedly at the applicant’s disposal of asking for a prosecutorial inquiry, this remedy could not be regarded per se as judicial review satisfying the requirements of Article 5 § 4. As for the possibilities identified by the Government, namely to ask social services or a prosecutor to initiate a review of the applicant’s medical condition, these procedures were discretionary. In any event, the applicant had filed a number of complaints with the prosecutor’s office and other authorities, which had unanimously concluded that her hospitalisation in the Kėdainiai Home had been carried out in accordance with the domestic law, thus being disinclined to take any action to override the will of her adoptive father, acting as her legal guardian. Once the Kėdainiai Home had become her guardian, it had been clear that that facility clearly had an interest in stifling any of the applicant’s complaints and in keeping her in the institution. The applicant therefore submitted that her rights under Article 5 § 4 of the Convention had been breached. 161. The Government maintained that the applicant had had an effective remedy to challenge her hospitalisation at the Kėdainiai facility. Thus, she had been able to apply for release or complain about the actions of the medical staff through her guardians, who had represented her in dealings with third parties, including the courts. Further, the applicant had been able to ask the social services authorities or a prosecutor to initiate a review of her situation. For the Government, the applicant’s complaint was unfounded. B. The Court’s assessment 1. Admissibility 162. 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. 2. Merits 163. Among the principles emerging from the Court’s case-law on Article 5 § 4 concerning “persons of unsound mind” are the following: (a) a person of unsound mind who is compulsorily confined in a psychiatric institution 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 that the procedure followed have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes 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. Special procedural safeguards may prove 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 Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A; also see Stanev, cited above, § 171). 164. This is so in cases where the original detention was initially authorised by a judicial authority (see X v. the United Kingdom, 5 November 1981, § 52, Series A no. 46), and it is all the more true in the circumstances of the present case, where the applicant’s placement in the Kėdainiai Home was initiated by a private individual, namely the applicant’s guardian, and decided upon by the municipal and social care authorities without any involvement on the part of the courts. 165. The Court accepts that the forms of judicial review may vary from one domain to another and may depend on the type of the deprivation of liberty at issue. It is not within the province of the Court to inquire into what would be the best or most appropriate system of judicial review in this sphere. However, in the present case the courts were not involved in deciding on the applicant’s placement in the Kėdainiai Home at any moment or in any form. It appears that, in situations such as the applicant’s, Lithuanian law does not provide for automatic judicial review of the lawfulness of admitting a person to and keeping him in an institution like the Kėdainiai Home. In addition, a review cannot be initiated by the person concerned if that person has been deprived of his legal capacity. In sum, the applicant was prevented from independently pursuing any legal remedy of a judicial character to challenge her continued involuntary institutionalisation. 166. The Government claimed that the applicant could have initiated legal proceedings through her guardians. However, that remedy was not directly accessible to her: the applicant fully depended on her legal guardian, her adoptive father, who had requested her placement in the Kėdainiai Home in the first place. The Court also observes that the applicant’s current legal guardian is the Kėdainiai Home – the same social care institution which is responsible for her treatment and, furthermore, the same institution which the applicant had complained against on many occasions, including in court proceedings. In this context the Court considers that where a person capable of expressing a view, despite having been deprived of legal capacity, is deprived of his liberty at the request of his guardian, he must be accorded an opportunity of contesting that confinement before a court, with separate legal representation. Lastly, as to the prospect of an inquiry carried out by the prosecuting authorities, the Court shares the applicant’s observation that a prosecutorial inquiry cannot as such be regarded as judicial review satisfying the requirements of Article 5 § 4 of the Convention (see Shtukaturov, cited above, § 124). 167. In the light of the above, the Court dismisses the Government’s preliminary objection of abuse of application and holds that there has also been a violation of Article 5 § 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 168. Relying on Articles 3 and 8 of the Convention, the applicant complained of having been physically restrained on 25 January 2005, when she had been tied to a bed in an isolation room, and of the overall standard of medical treatment in the Kėdainiai Home. She also argued that she had been given poor quality food. The Court considers that in the particular circumstances of the present case these complaints fall to be examined under Article 3 of the Convention, which reads, in so far as relevant as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 169. The applicant submitted that she had been forced to take medication provided by the Kėdainiai Home with little or no information about its use. On occasions she had refused medication, but had generally acquiesced to its administration because of persistent pressure from the staff. The incident of 25 January 2005 had exemplified that pressure at its worst, though the coercion is generally less dramatic and persistent. 170. The applicant also complained that at the Kėdainiai institution she had been given out-of-date products to eat. 171. The Government argued that the measures used in respect of the applicant had been therapeutic and necessary. Turning to the events of 25 January 2005, they submitted that the social workers had decided on their own to tie down the applicant as they had been afraid for her life. Although the exact length of time that the applicant had been tied up for was not clear, it could have lasted for only fifteen to thirty minutes and had not continued any longer than necessary. During the incident the applicant had been forcibly injected with 10 mg of Haloperidol, whilst the average therapeutic dosage of the said medication is 12 mg. Haloperidol is a common antipsychotic medicament prescribed for individuals suffering from schizophrenia in order to eliminate the symptoms of psychosis. According to the generally accepted principles of psychiatry, medical necessity had fully justified the treatment in issue. The Government also drew the Court’s attention to the prosecutor’s decision of 31 July 2006 to discontinue the pre-trial investigation in connection with the applicant’s forced restraint. They also noted the absence of any other similar incidents at the Kėdainiai Home in respect of the applicant. The Government summed up that even if the treatment of the applicant on 25 January 2005 had had unpleasant effects, it had not reached the minimum level of severity required under Article 3 of the Convention. 172. As to the applicant’s complaint that she had been provided poor quality food, the Government submitted that although the authorities had found out-of-date meat in the Kėdainiai Home, the meat had been frozen and had never been used for cooking. A follow-up report of 20 February 2006 did not contain any evidence that the applicant had complained of failure to provide any medical assistance to her in respect of alleged food poisoning. For the Government, the applicant’s accusations towards the care institution were unsubstantiated and hence manifestly ill-founded. B. The Court’s assessment 173. Referring to its settled case-law the Court reiterates that the position of inferiority and powerlessness which is typical of patients admitted on an involuntary basis to psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3, whose requirements permit of derogation. The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244). 174. In this case it is above all the applicant’s restraint on 25 January 2005 which appears worrying. However, the evidence before the Court is not sufficient to disprove the Government’s suggestion that, according to the psychiatric principles generally accepted at the time, medical necessity justified the treatment in issue. Moreover, the applicant’s allegations that the use of restraint measures had been unlawful were dismissed by the prosecutors and the Court sees no valid reason to dispute their findings (see paragraphs 54-58 above). The Court also notes the Government’s affirmation that there were no more similar incidents in the Kėdainiai Home in which physical restraint and supplementary medication had been used in respect of the applicant. 175. Turning to the applicant’s submission of allegedly poor quality food and food poisoning, the Court notes with concern that out-of-date meat was found at the Kėdainiai Home (see paragraph 63 above). However, that fact alone is not sufficient to substantiate the applicant’s accusations of inhuman or degrading treatment, as directed towards the Kėdainiai institution, to such an extent that an issue under Article 3 of the Convention would arise. 176. The Court accordingly finds that the above complaints must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. Censorship of correspondence 177. The applicant alleged that the Kėdainiai Home had censored her correspondence, in breach of Article 8 of the Convention, which reads insofar as relevant 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 ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. The parties’ submissions 178. The applicant argued that her correspondence, including that with the Court, and her telephone conversations, as illustrated by the incident of 18 January 2005, had been censored by the Kėdainiai Home. She also submitted that she had been denied books and newspapers. 179. The Government disputed the applicant’s submissions and argued that the residents of the Kėdainiai Home were guaranteed the right to receive periodicals and personal correspondence. There were no requirements that the residents should send or receive their correspondence through the personnel of the facility. 180. As to the particular situation of the applicant, the Government underlined that there had been neither stopping nor censorship of any of her communications, such as telephone conversations or letters, including those with the Court. Such allegations were totally unsubstantiated and there was no proof that any acts of interception of communications had occurred. As regards the only specified incident involving the telephone call from Ms M. Buržinskienė on 18 January 2005, which the applicant had not been invited to answer, the Government noted that in the context of a more intensified deterioration of the applicant’s health, the Kėdainiai Home personnel might have decided not to have the applicant temporarily disturbed. Nonetheless, since 2005 the applicant had possessed several of her own mobile phones and had used them at her own convenience and without hindrance. Furthermore, the applicant had not indicated either the addressees of her supposedly intercepted correspondence, or, at least, the approximate dates of such letters. Lastly, the Government submitted that the Kėdainiai Home had a room with newspapers, periodicals and books, to which all the residents, including the applicant, had unrestricted access. Relying on the above considerations, the Government argued that the applicant’s complaint was manifestly ill-founded. 2. The Court’s assessment 181. The Court recalls its case-law to the effect that telephone calls made from business premises, as well as from the home, may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 § 1 (see Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997-III). Turning to the applicant’s situation, it observes that on 18 January 2005 the applicant was indeed prevented from receiving a telephone call from Ms Buržinskienė. However, taking into account the applicant’s medical diagnosis and the explanations provided by the Government, the Court is not ready to hold that on that occasion the applicant’s rights under Article 8 were limited more than was strictly necessary. The Court also notes that this part of the complaint has been raised out of time, as required by Article 35 § 1 of the Convention. 182. Furthermore, having examined the materials submitted by the parties, the Court finds the applicant’s other complaints in this part of the application not sufficiently substantiated and therefore rejects them as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. B. Visits 1. The parties’ submissions 183. The applicant further argued that her ability to build and sustain relationships had also been limited due to restrictions placed on her capacity to receive visitors and telephone calls. The applicant has had very little contact with members of the community outside the facility. Outsiders’ visits are generally limited and most visitors may not be received in private. The director of the Kėdainiai Home had in the past restricted visits from outsiders after the applicant’s institutionalisation, upon a request from her guardian. The list of visitors maintained by the Kėdainiai Home showed that between 2 August 2004 and 25 December 2006 only the applicant’s adoptive father had visited her, with few exceptions. Before the applicant got her own mobile phone, she had had to use the facilities provided by the institution. At that time, she had only been able to receive calls through the Kėdainiai Home’s switchboard. She relied upon the right to respect for private and family life under the above-cited Article 8 of the Convention. 184. The Government pointed out that the applicant, as with the other residents of the Kėdainiai Home, was entitled to unrestricted visits by her relatives and her court-appointed guardians. As to other visitors, such individuals could visit residents upon having obtained the management’s permission, which was required in order to protect the interests and the safety of the residents of the institution. 185. The Government submitted that the applicant’s adoptive father, as her guardian, had requested that the Kėdainiai Home prevent D.G.’s negative influence over the applicant and restrict her visits in order to avoid the applicant’s destabilisation. Only once on 18 August 2004, in accordance with that request and also having the oral consent of the in-house psychiatrist, had D.G.’s permission to visit been denied. In that connection, the Government also referred to a doctor’s report concerning the negative influence of D.G. over the applicant. Relying on the record of visitors to the Kėdainiai Home, the Government asserted that, contrary to what had been said by the applicant, she had received visitors. In contrast to what had been suggested by the applicant, it had not been her relatives, but rather her friends who had most often visited her. 186. In the light of the above, the Government submitted that the applicant’s complaint was manifestly ill-founded. 2. The Court’s assessment 187. The Court reiterates that Article 8 of the Convention is intended to protect individuals from arbitrary interference by the State in their private and family life, home and correspondence. 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 entirely exclude therefrom 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 (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251-B). 188. Turning to the applicant’s case, the Court notes that, except for one occasion on which D.G. was not allowed to see her on 18 August 2004, the applicant has not substantiated her pleas of social isolation and restrictions on having people visit her. Even assuming that these matters have been raised in time, the Court is not ready to disagree with the Government’s suggestion that that single restriction was aimed at the protection of the applicant’s mental health and was thus in compliance with the requirements of Article 8 of the Convention. 189. The applicant complained that by her admission to the Kėdainiai Home she had been segregated from society and cut off from social networks. Whilst acknowledging that because of her involuntary stay in the institution the applicant indeed could have faced certain restrictions in contacting others, the Court nonetheless observes that between 2 August 2004 and 25 December 2006 the applicant received one or more visitors on forty-two separate occasions. Of those visits, her friends, relatives and D.G. saw the applicant thirty-eight times (see paragraph 31 above). Lastly, the applicant had herself admitted that at one point she had got a mobile phone, which helped her to maintain contact with the outside world. 190. In the light of the foregoing, the Court considers that this part of the applicant’s complaint is manifestly ill-founded within the meaning of Article 35 § 3 and therefore inadmissible in accordance with Article 35 § 4 of the Convention. VII. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION 191. The applicant complained that she had been prevented from practising her religion whilst resident in the Kėdainiai Home, in breach of Article 9 of the Convention. 192. The Government submitted that the applicant’s complaint was purely abstract in nature. It was not indicated in the applicant’s complaint when in particular she had been barred or impeded from practising her religion. Pursuant to the Bylaws of the Kėdainiai facility, the residents thereof had the right to practise their chosen religion and to attend a place of worship. 193. The Court has examined the above complaint as submitted by the applicant. However, having regard to all the material in its possession, it finds the complaint wholly unsubstantiated and therefore rejects it as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. VIII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 194. Relying upon Article 13 of the Convention, the applicant also complained that she had had no effective domestic remedies at her disposal to seek redress for the alleged violations of which she had complained to the Court. 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 applicant 195. The applicant submitted at the outset that she is a very vulnerable individual. She is legally incapacitated with a history of mental health problems and has been admitted to a psychiatric institution against her will for an indeterminate period. The applicant’s guardian, who has the power to take decisions on all her aspects of life, is the care institution itself. In the applicant’s view, on account of her vulnerability, Article 13 of the Convention required that the State take supplementary measures to make sure that she could have benefited from effective remedies for the violations of her rights. 196. The applicant pointed out that she does not have independent standing to initiate any civil proceedings. Only once had she been successful in initiating court proceedings, namely those before the Kaunas District Court in 2005 concerning the change of guardianship. However, even then it had been not possible to pursue that remedy in full, given that the Kaunas District Court had decided to refuse the applicant’s request for legal assistance on the grounds that she had been represented by her legal guardian, who already had a lawyer. 197. The applicant further submitted that neither could she exercise her right to an effective domestic remedy through other persons. As concerns her guardian, who was her legal representative in accordance with the law, this remedy had been purely discretionary. More importantly, it was difficult to conceive how this remedy could have worked with regard to complaints challenging decisions taken by the guardian him, her or itself on the applicant’s behalf, such as the decision to hospitalise the applicant in the institution, or the decision by the Kėdainiai Home to restrict visitors’ access to the applicant. 198. The applicant also argued that she could not effectively act through the Social Services Department or the public prosecutor either. As concerns the first body, she emphasised the purely discretionary powers of the social services department and doubted the impartiality of an institution which had to a large degree been responsible for the appointment of her guardians and for her hospitalisation in the institution. As concerns the prosecutor, in the applicant’s view, his decisions were not binding and, as practice had showed, the prosecutor had invariably rejected the applicant’s complaints, mostly deferring to the decisions taken by the guardians or the social service authorities. 199. Lastly, the applicant submitted that decisions to remove incapacitation, although theoretically possible, were exceptional. Most importantly, the ability to bring an action to restore legal capacity did not belong to incapacitated persons themselves, but rather to their guardian. For most people, incapacitation is for life. 2. The Government 200. The Government contested the applicant’s arguments. Whilst acknowledging that the applicant had no independent standing in the domestic proceedings, the Government contended that she had been able to effectively act through her guardian, who had been her legal representative. They also pointed to the Kaunas City District Court’s decision of 7 November 2007 to accept the applicant’s application for change of her guardian for examination. For the Government, it could be presumed that the district court had reviewed the applicant’s request to reopen the proceedings with a high degree of care because of the essence of the applicant’s request – appointment of a guardian. Even though the court had refused the applicant’s request to have separate legal assistance, that refusal had been based on domestic law, pursuant to which a guardian is the legal representative of an incapacitated person. Furthermore, the actions of the applicant’s guardian had been supervised by the social services authorities, thus protecting the interests of the applicant. 201. The Government next argued that the protection of the rights and interests of the applicant fell within the notion of public interest. Thus the applicant had been able to apply to the prosecutor, who, in turn, had been entitled to file a civil claim or an administrative complaint. In this context the Government referred to the decisions of 3 September 2004 and 31 July 2006, by which the prosecutors had discontinued the official investigation into the complaints about alleged deprivation of liberty of the applicant. However, having considered the complaints to be unfounded, the prosecutors saw no reason to apply to the domestic courts in order to protect the public interest. 202. As to an effective remedy for the applicant to complain of the alleged violations of Articles 8 and 9 of the Convention regarding her living conditions, the Government contended that, pursuant to the Law on Social Services, the applicant could have complained to social care officials, and, in the event that they dismissed her complaint, to the courts. Various complaints made by the applicant regarding her allegedly inadequate living conditions and ill-treatment in the Kėdainiai Home had been investigated by a number of municipal officials and interdepartmental panels, which had found no violations of the applicant’s rights. Moreover, neither a prosecutor nor the applicant’s guardian had ever applied to the courts with a claim for damages for any alleged violations of the applicant’s rights. In sum, the applicant had had domestic remedies which were effective, available in theory and in practice, and capable of providing redress in respect of the applicant’s complaints and which had offered reasonable prospects of success. 203. Lastly, the Government submitted that declaration of the recovery of a person’s legal capacity upon the amelioration of his or her mental health was quite common practice in Lithuania. Such requests could be submitted by a social care institution, acting as a guardian, on its own motion. Moreover, a request to annul an incapacitation decision could also be lodged by a prosecutor in the public interest. Nonetheless, as regards the applicant, the circumstances warranting her incapacitation have never disappeared as no amelioration of her mental state has ever been established that would give her guardian, be it her adoptive father or the Kėdainiai Home, or the prosecutor grounds to apply to a court for the reinstatement of her legal capacity. B. The Court’s assessment 204. The Court finds that this complaint is linked to the complaints submitted under Articles 5 and 6 of the Convention, and it should therefore be declared admissible. 205. The Court recalls its case-law to the effect that Article 5 § 4 provides a lex specialis in relation to the more general requirements of Article 13 (see Chahal v. the United Kingdom, 15 November 1996, § 126, Reports of Judgments and Decisions 1996-V). It also reiterates that the requirements of Article 13 are less strict than, and are here absorbed by, those of Article 6 (see, among many authorities, Kamasinski v. Austria, 19 December 1989, § 110, Series A no. 168). The Court further notes that, in analysing the fairness of the civil proceedings concerning the applicant’s guardianship and the lawfulness of the applicant’s involuntary placement in the Kėdainiai Home, it has already taken account of the fact that the applicant is deprived of legal capacity and thus is not able to initiate any legal proceedings before the domestic courts. When analysing the above complaints, the Court has also noted that the other remedies suggested by the Government, be it a possibility to act through her guardians or a request by the applicant to complain to a prosecutor or her complaints to the social care authorities, have not been proved to be feasible in the applicant’s case. This being so, having regard to its conclusions under Articles 5 § 4 and 6 of the Convention, the Court does not consider it necessary to re-examine these aspects of the case separately through the prism of the “effective remedies” requirement of Article 13. IX. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 206. Relying upon Article 2 of the Convention, the applicant also complained that, due to overmedication, her life is at risk. Relying on Article 10 of the Convention, the applicant alleged that one of the reasons for her involuntary psychiatric hospitalisation had been her bold poetic expression. Finally, without citing any Article of the Convention or its Protocols, the applicant complained of a violation of her property rights by her State-appointed guardian. 207. Having examined the materials submitted by the parties, the Court finds that the applicant has not provided sufficient evidence to substantiate her claims. It notes that, according to the Government, the applicant had received and had had access to newspapers and reading materials (see paragraph 180 above). It further observes that the applicant’s complaints as to alleged breach of her property rights were dismissed by the prosecutors (see paragraph 52 above). The Court therefore rejects this part of the application as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 208. Relying upon Article 3 of the Convention, the applicant complained of her involuntary hospitalisation and treatment in the Kaunas Psychiatric Hospital from 30 June 2004 to 2 August 2004. The Court notes, however, that the applicant submitted this complaint on 28 March 2006. Accordingly, this part of the application has not been lodged within six months of the final effective measure or decision, as required by Article 35 § 1 of the Convention. It must therefore be rejected pursuant to Article 35 § 4. X. APPLICATION OF ARTICLE 41 OF THE CONVENTION 209. 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 210. The applicant claimed 300,000 euros (EUR) in respect of non ‑ pecuniary damage. 211. The Government submitted that the above claim was wholly unsubstantiated. 212. The Court notes that it has found a violation of Article 5 § 4 as well as a violation of Article 6 § 1 in the present case. As regards the non ‑ pecuniary damage already sustained, the Court finds that the violation of the Convention has indisputably caused the applicant substantial damage. In these circumstances, it considers that the applicant has experienced suffering and frustration, for which the mere finding of a violation cannot compensate. Making its assessment on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage. B. Costs and expenses 213. The applicant claimed the sum of EUR 16,609.85 for costs and expenses before the Court, broken down as follows: EUR 62 for secretarial costs; EUR 3,500 in relation to legal fees for preparation of the submissions made by the applicant’s lawyer; and EUR 13,047.85 for fees for legal advice from Interrights. 214. The Government submitted that the sum was excessive. 215. 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. 216. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Ruling on an equitable basis and taking into account the sums already paid to the applicant by the Council of Europe in legal aid, the Court awards the applicant EUR 5,000. C. Default interest 217. 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 5 § 1 (right to liberty and security) of the Convention, finding that it had been reliably established that the applicant was suffering from a mental disorder warranting compulsory confinement. Moreover, her confinement appeared to have been necessary since no alternative measures had been appropriate in her case. 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, considering that where a person capable of expressing a view, despite being deprived of legal capacity, was also deprived of liberty at the request of his or her guardian, he or she must be accorded the opportunity of contesting that confinement before a court with separate legal representation. |
345 | Rape and sexual abuse | III. RELEVANT INTERNATIONAL SOURCES A. Council of Europe Convention on Action against Trafficking in Human Beings 27. This Convention, which came into force on 1 February 2008 and was ratified by Bulgaria, provides in so far as relevant : Article 4 – Definitions “ For the purposes of this Convention: 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;” Article 18 – Criminalisation of trafficking in human beings “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally.” Article 30 – Court proceedings “In accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Article 6, each Party shall adopt such legislative or other measures as may be necessary to ensure in the course of judicial proceedings: a the protection of victims ’ private life and, where appropriate, identity; b victims ’ safety and protection from intimidation, in accordance with the conditions under its internal law ... ” 28. With regard more specifically to court proceedings, the explanatory report to the convention provides as follows : “ 299. Court proceedings in human-trafficking cases – as often with any serious form of crime – may have unfortunate consequences for the victims: ... 309. Use of audio and video technology for taking evidence and conducting hearings may, as far as possible, avoid repetition of hearings and of some face-to-face contact, thus making court proceedings less traumatic. In recent years, a number of countries have developed the use of technology in court proceedings, if necessary adapting the procedural rules on taking evidence and hearing victims. This is particularly the case with victims of sexual assault. ... 310. In addition to the possible use of audio and video technology for avoiding traumatic or repeat testimony, it should be pointed out that victims can be influenced by the mental pressure of being brought face to face with the accused in the courtroom. To give them proper protection it is sometimes advisable to avoid their being present in court at the same time as the accused and to allow them to testify in another room. Whether it is the accused or the victim who is moved from the courtroom, video links or other video technology can be used to enable the parties to follow the proceedings. Such measures are necessary to spare them any unnecessary stress or disturbance when they give their evidence; the trial therefore has to be organised in such a way as to avoid, as far as possible, any unwelcome influence that might hinder establishing the truth or deter victims and witnesses from making statements.” B. Guidelines of the Committee of Ministers of the Council of Europe 29. 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, remind the member States of the need to implement measures to eradicate impunity for such violations, be they perpetrated by State officials or authorities or by individuals. This document reads, inter alia, as follows : “When it occurs, impunity is caused or facilitated notably by the lack of diligent reaction of institutions or state agents to serious human rights violations. In these circumstances, faults might be observed within state institutions as well as at each stage of the judicial or administrative proceedings. States are to combat impunity as a matter of justice for the victims, as a deterrent with respect to future human rights violations and in order to uphold the rule of law and public trust in the justice system. ... Combating impunity requires that there be an effective investigation in cases of serious human rights violations. This duty has an absolute character .” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30. Relying on Articles 3, 8 and 6 § 1 of the Convention, the applicant complained that the criminal proceedings brought against her attackers had been ineffective. She complained in particular of excessive delays in the investigation and trial, the lack of investigation into the possible involvement of the two police officers and the failure to charge two of her assailants. Having regard to the nature of the complaints lodged by the applicant, the Court considers that these should be examined exclusively under Article 3 of the Convention, which provides : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” ... B. Merits 1) The parties ’ submissions 39. The applicant submitted that the criminal proceedings against her assailants had lacked the effectiveness required by Article 3 of the Convention. She alleged that the authorities had not prosecuted some of the people involved, including two police officers, Z.B. and Y.G., and two other individuals, Y.Y.G. and K.M., whom she had identified at the start of the investigation. She complained that the authorities had not made the necessary efforts to investigate the link between the two police officers and the prostitution ring into which attempts had been made to coerce her or to search for the other two individuals. The applicant maintained that the authorities had not displayed diligence in the conduct of the proceedings, which had been unduly prolonged; the dual effect of this was that she had endured further psychological suffering and the proceedings in respect of some of the perpetrators had become time-barred. 40. The Government considered that the criminal proceedings had been very complex on account of the nature of the facts and the involvement of several individuals. In their submission, the authorities had endeavoured to clarify the circumstances of the case, which had been difficult on account of the conflicting evidence of the persons involved, inconsistent explanations by the applicant and difficulties in locating certain suspects. They acknowledged that delays had occurred in the proceedings and that there had been omissions in the investigation, but considered that the authorities had done everything in their power to remedy that, particularly when the prosecutor had on several occasions sent the case back for further investigation. The proceedings had thus resulted in some of the perpetrators being punished and the applicant being awarded compensation. 2) The Court ’ s assessment a) Applicability of Article 3 of the Convention 41. It is not disputed in the instant case that the acts of rape and violence perpetrated against the applicant fall within the scope of Article 3 of the Convention ( see M.C. v. Bulgaria, no. 39272/98, § 148, ECHR 2003 ‑ XII, and M.N. v. Bulgaria, no. 3832/06, § 34, 27 November 2012). b) General principles emerging from the Court ’ s case-law 42. The Court reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires them to take steps to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment inflicted by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports of Judgments and Decisions 1998 ‑ VI, and M.C. v. Bulgaria, cited above, § 149). 43. Such protection necessitates in particular establishing a legislative framework to shield individuals adequately from treatment incompatible with Article 3, particularly through the enactment of criminal-law provisions and their effective application in practice ( see, inter alia, with regard to non-consensual sexual acts, M.C. v. Bulgaria, cited above, §§ 150- 53, and M.N. v. Bulgaria, cited above, §§ 36-37). 44. Furthermore, where an individual claims on arguable grounds to have suffered acts contrary to Article 3, that Article requires the national authorities to conduct an effective official investigation to establish the facts of the case and identify and punish those responsible. These obligations apply whatever the status of the persons charged, including private individuals ( see Šečić v. Croatia, no. 40116/02, § 53, 31 May 2007, and M.C. v. Bulgaria, cited above, § 153 ). Where, as in the present case, the preliminary investigations have led to prosecution in the national courts, the procedural obligations under Article 3 of the Convention extend to the proceedings as a whole, including the trial stage ( see W. v. Slovenia, cited above, § 65 ). 45. In order to be effective, the investigation must be sufficiently thorough and objective. The authorities must take reasonable measures available to them to obtain evidence relating to the offence in question ( see, in the context of criminal proceedings for rape, M.C. v. Bulgaria, § 151; M.N. v. Bulgaria, §§ 38-39; and W. v. Slovenia, § 64, all cited above, and P.M. v. Bulgaria, no. 49669/07, § § 63-67, 24 January 2012). 46. The obligation to conduct an effective investigation is an obligation not of result but of means. Whilst this requirement does not impose an obligation for all prosecutions to result in conviction, or indeed in a particular sentence, the national courts must not under any circumstances be prepared to allow physical or psychological suffering to go unpunished. Time-barring of the criminal proceedings as a result of lack of action by the relevant authorities has accordingly led the Court to conclude that there was a failure to comply with the State ’ s positive obligations ( see M.N. v. Bulgaria, cited above, §§ 46 and 49). 47. A requirement of promptness and reasonable expedition is also implicit in this context. In this connection the Court has considered it an essential requirement that investigations be promptly instituted and carried out. Irrespective of the outcome of the proceedings, the protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of the specific cases submitted to the authorities ( see W. v. Slovenia, cited above, § 64, and Ebcin v. Turkey, no. 19506/05, § 40, 1 February 2011 ). c) Application of these principles to the present case 48. In the instant case criminal proceedings were instituted following a complaint filed by the applicant and some of the perpetrators were committed for trial. The Court notes, however, that the criminal proceedings – the preliminary investigation and the first and second-instance proceedings – lasted fourteen years in total, which at first sight appears excessive having regard to the authorities ’ obligation to proceed promptly in such cases. The Government referred to the complexity of the case to explain the length, but the Court is not convinced that the complexity of the present case can justify proceedings of that length particularly as the main suspects had been identified by the applicant at the very beginning of the proceedings. 49. The preliminary investigation, which extended over a period of eight years, appears to have been considerably delayed. Apart from a number of periods of inactivity, the Court observes that the investigation was closed four times but the prosecutor decided to send the case back for further investigation on the grounds that the necessary investigative measures had not been carried out or that procedural irregularities had been committed, often despite instructions given by the prosecutor in the preceding committal decisions ( see paragraph 10 above ). These circumstances reveal a lack of diligence by the authorities and undeniably had the effect of delaying the investigation phase of the proceedings. They also incur the risk of causing the criminal proceedings to become time-barred. It turns out that prosecution of the less serious offences was indeed terminated on account of expiry of the absolute limitation period, which applies even where a criminal trial is under way ( see paragraphs 16 and 19). 50. The lack of diligence of the authorities carrying out the investigation is also reflected in the failure to investigate certain aspects of the case, such as the involvement of the two police officers Z.B. and Y.G., and of two other individuals, K.M. and Y.Y.G., whom the applicant had identified as having been involved in the attack. Admittedly, it is not, in theory, the Court ’ s task to call into question the lines of inquiry pursued by the investigators or the findings of fact made by them, unless they manifestly fail to take into account relevant elements or are arbitrary ( see Georgiev v. Bulgaria ( dec. ), no. 34137/03, 11 January 2011, see also Nikolay Dimitrov v. Bulgaria, no. 72663/01, § 76, 27 September 2007 ). The Court also observes, with regard to the proceedings brought against the two police officers, that the applicant did not challenge the order of 19 October 1999 discontinuing the proceedings, although she could have appealed to a court against the prosecutor ’ s decision to discontinue the proceedings. It is a cause for concern, however, that given the nature of the offences in the present case and despite the applicant ’ s allegations that her assailants were members of a network trafficking in women with a view to their prostitution abroad, the authorities did not consider it necessary to examine the possible involvement of an organised criminal network and confined themselves to prosecuting the individuals directly responsible for the abduction and assault of the applicant. With regard to the involvement of the other two individuals, there is no evidence that following the prosecutor ’ s decision to sever the investigation in their regard the authorities displayed diligence and carried out concrete measures with a view to finding the individuals in question or gathering additional evidence. 51. The Court notes, lastly, that the judicial stage of the proceedings also lasted a considerable time which does not appear to be entirely justified by its complexity. Many hearings were adjourned without an examination of the merits of the case, on the grounds that some of the accused had not been properly summoned or had failed to appear. Even if the courts did take certain measures in that regard, such as examining the case in the absence of certain defendants, the proceedings were nonetheless considerably delayed. 52. The excessive length of the proceedings undeniably had negative repercussions on the applicant, who, clearly psychologically very vulnerable as a result of the attack, was left in a state of uncertainty regarding the possibility of securing the trial and punishment of her assailants and had to return to court repeatedly and relive the events during the many examinations by the court ( see W. v. Slovenia, cited above, § 69). 53. In the light of the foregoing, the proceedings cannot be deemed to have satisfied the requirements of Article 3 of the Convention. Accordingly, the Court rejects the Government ’ s preliminary objection concerning the premature nature of the application and holds that there has been a violation of Article 3 of the Convention. II. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION A. Application of Article 46 54. The applicant submitted that her case had revealed a certain number of recurring problems regarding the ineffectiveness of criminal proceedings, in particular in cases of human trafficking. She asked the Court to indicate to the respondent Government, in terms of the individual and general measures they should adopt in execution of the judgment, for the purposes of Article 46 of the Convention, to appoint an independent expert to review the criminal proceedings in the present case and hear all those involved in the investigation. That expert ’ s report should be made public in order to bring to light the flaws in those proceedings and take the necessary measures to remedy these. 55. The Court reiterates that under 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. In respect of a judgment in which the Court finds a breach of the Convention or the Protocols thereto 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. 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, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06, § 254- 55, ECHR 2012). 56. In the present case the Court has found an infringement of the procedural obligation, deriving from Article 3 of the Convention, on the respondent State to carry out an effective investigation of the allegations of ill-treatment suffered by the applicant, having regard, more specifically, to the excessive delays during the criminal proceedings and the lack of an investigation into certain aspects of the facts ( see paragraphs 48-53 above ). The Court observes that it has already found, on many occasions, violations of the obligation to carry out an effective investigation in applications concerning Bulgaria. It has concluded, accordingly, that there was a violation of the procedural obligations under Article 2 or Article 3 of the Convention in more than 45 judgments ( see, inter alia, with regard to violence perpetrated by individuals, Angelova and Iliev v. Bulgaria, no. 55523/00, 26 July 2007, and the above-cited judgments Nikolay Dimitrov v. Bulgaria; M.N. v. Bulgaria; and P.M. v. Bulgaria; and, with regard to death or ill-treatment attributable to the authorities, Velikova v. Bulgaria, no. 41488/98, ECHR 2000 ‑ VI; Angelova v. Bulgaria, no. 38361/97, ECHR 2002 ‑ IV, and Dimitrov and Others v. Bulgaria, no. 77938/11, 1 July 2014) Moreover, a number of applications concerning the obligation to carry out an effective investigation into cases of rape have recently been struck out of the list of cases following a friendly settlement reached between the parties or a unilateral declaration by the Government acknowledging a violation of Article 3 ( see S .M. v. Bulgaria ( dec. ), no. 78421/11, 25 June 2013; A.S. v. Bulgaria ( dec. ), no. 78390/11, 25 June 2013; and S.L. and Others v. Bulgaria ( dec. ), no. 8981/10, 14 May 2013). 57. In the majority of those cases the Court found that there had been substantial delays at the preliminary - investigation stage and that no thorough and objective investigation had been carried out. In certain situations it found that the delays had led to termination of the proceedings on the grounds that they were time-barred, where the suspects, despite having been identified, had not been formally charged ( see Stoev and Others v. Bulgaria, no. 41717/09, § 48, 11 March 2014, and M.N. v. Bulgaria, cited above, § 49) or that, despite committal for trial of the presumed perpetrators and a trial being held, the “absolute” limitation period had expired ( see Angelova and Iliev, § 103, and P.M. v. Bulgaria, § 66, cited above ). Apart from repeated findings of failure to carry out necessary investigative measures, in certain cases the Court noted that the competent authorities had not taken account of certain evidence ( see Dimitrova and Others v. Bulgaria, no. 44862/04, § 79-82, 27 January 2011; Nikolay Dimitrov, cited above, § 76; and Dimitrov and Others, cited above, § 145 ), had not sought to ascertain certain factual circumstances or the involvement of certain individuals in the criminal offence ( see Dimitrova and Others, cited above, §§ 83-84, and Abdu v. Bulgaria, no. 26827/08, § 49, 11 March 2014) or that the prosecutor had persistently refused to comply with the court ’ s instructions regarding the preliminary investigation ( see Biser Kostov v. Bulgaria, no. 32662/06, § 82, 10 January 2012). 58. This non- exhaustive list of the various flaws found in a large number of cases reveals the existence of a systemic problem concerning the ineffectiveness of investigations in Bulgaria. The Court is aware, however, of the complexity of the structural problem found to exist and of the difficulty in identifying the exact causes of the shortcomings found or pinpointing the specific measures that should be implemented in order to improve the quality of investigations. In these circumstances the Court does not consider itself to be in a position to indicate which individual and general measures should be implemented for the purposes of executing the present judgment. It considers that the national authorities, in cooperation with the Committee of Ministers, are the best placed to identify the various causes of the systemic problem relating to the ineffectiveness of investigations and to decide which general measures are required – in practical terms – to prevent similar future violations, with a view to combating impunity and upholding the rule of law and the trust of the public and victims in the justice system ( see Kaverzin v. Ukraine, no. 23893/03, § 181, 15 May 2012 ). ... | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the shortcomings in the investigation carried out into the illegal confinement and rape of the applicant, having regard in particular to the excessive delays in the criminal proceedings and the lack of investigation into certain aspects of the offences. The Court found it to be a cause of particular concern that the authorities had not deemed it necessary to examine the applicant’s allegations of the possible involvement in this case of an organised criminal network of trafficking in women. The Court also observed in this case that it had already, in over 45 judgments against Bulgaria, found that the authorities had failed to comply with their obligation to carry out an effective investigation. Finding that these recurrent shortcomings disclosed the existence of a systemic problem, it considered, under Article 46 (binding force and execution of judgments) of the Convention, that it was incumbent on Bulgaria, in cooperation with the Committee of Ministers of the Council of Europe, to decide which general measures were required in practical terms to prevent other similar violations of the Convention in the future. |
489 | Calculation of a disability allowance | THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 48. The applicant alleged that she had been discriminated against, arguing that the combined method of calculating the degree of disability had resulted in her being refused a disability benefit because of her part-time work. In her submission, the method was based on the very traditional notion that only one partner in a couple – most often, the man – carried on a paid occupation, while the other partner was engaged full - time in taking care of the household and children ( Aufgabentrennung ). Where, on the other hand, a couple decided to share roles ( Aufgabenteilung ), a more modern approach in her view, they ran the risk of losing entitlement to a benefit in the event of a disability. For the above reasons, the applicant alleged a violation of Article 14 of the Convention taken in conjunction with Article 8. The provisions in question read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 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.” 49. The applicant contended that she was placed at a disadvantage, first of all, compared with individuals who did not perform any paid work. In a case like hers, such persons would be considered to have a 44% disability and would therefore be entitled to a benefit (the minimum degree of disability was 40%). She was also discriminated against compared with individuals who did not have to take care of a household or children and who could therefore work full - time. In a situation identical to hers, such persons would be deemed to have a 55% disability. As the combined method did not apply to these two categories of persons, they would be entitled to a disability benefit. In the applicant ’ s view, this legal situation discriminated against her on two counts: (i) firstly, on the grounds of her disability, as the combined method was apt to discourage persons with a disability from making any effort to join the workforce by taking up part-time work, given that this would place them at risk of losing their benefit; (ii) secondly, on the grounds of her gender, as the legal arrangements in force, in the vast majority of cases, affected women after childbirth. 50. The Government contested the applicant ’ s arguments. ... B. Merits 1. Applicability of Article 14 of the Convention taken in conjunction with Article 8 ( a) Whether the facts of the case fall within the ambit of Article 8 ( i ) The parties ’ submissions ( α ) The Government 52. The Government submitted that the right to respect for family life did not give rise in principle to direct entitlement to positive benefits from the State aimed at facilitating family life. The rights guaranteed by the Convention did not encompass an obligation for the Contracting Parties to provide certain financial benefits or ensure a certain standard of living. 53. In cases where it had been called upon to examine a refusal to grant an applicant a particular social insurance benefit, the Court had based its findings on Protocol No. 1 to the Convention, which had not been ratified by Switzerland. The Government inferred from this that Article 14 of the Convention, taken in conjunction with Article 8, was not applicable in the present case. In their submission, the complaints alleging a violation of that provision should therefore be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention. 54. The Government argued that the disability benefit was not aimed at enabling the family of the disabled person to allocate tasks in a particular way, either before or after the disability had occurred (for instance, in order to allow the spouse of the insured person to work part - time). In the context of application of the combined method, the insured person had to make a choice, before the benefit was calculated, as to how the distribution of tasks would be organised if he or she were in good health. Considerations relating to the law on disability insurance, such as the method used to assess disability or the prospect of obtaining a benefit, should not enter into the equation. Likewise, the question of the disability benefit did not influence the decision whether and to what extent the insured person, as a person with a disability, used his or her remaining work capacity in the context of the hypothetical division of tasks based on the assumption that he or she was in good health. Accordingly, the Government argued that the disability benefit in no way affected the allocation of tasks within the family of the disabled person. ( β ) The applicant 55. In the applicant ’ s view, the present case fell within the scope of Article 8. While it was true that entitlement to a disability benefit existed irrespective of whether a family within the meaning of Article 8 was involved, as observed by the Government, the discrimination of which she complained affected precisely those insured persons who had decided to work only part - time because of their household or parental responsibilities. In the case of other insured persons – those, for instance, who did not work full - time because they wished to pursue a hobby – the Federal Court was less incisive in applying the combined method of calculating the degree of disability. This meant that it was easier for persons who worked part - time to obtain a benefit if they devoted their free time to leisure activities rather than to household tasks. Hence, the combined method only penalised families. The negative impact of the combined method was even greater when the disabled person was a single parent who could not rely on a spouse ’ s financial contribution. 56. In view of the foregoing, the applicant argued that the case did indeed concern the implications of the method used to determine whether a benefit was granted, and its implications for the family. Contrary to the Government ’ s assertion, the way in which tasks were allocated had a direct impact on the granting or refusal of a disability benefit. 57. Hence, in the applicant ’ s submission, Article 14 taken in conjunction with Article 8 was applicable in the present case. ( ii ) The Court ’ s assessment 58. As regards protection against discrimination, the Court reiterates that Article 14 only complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence because it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII). The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights protected by the Convention. It is necessary but also sufficient for the facts of the case to fall “within the ambit” of one or more of the Articles of the Convention or its Protocols ( see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 72, ECHR 2013 (extracts) ). 59. The Court further reiterates that the Convention does not guarantee, as such, the right to an old-age pension or any social benefit of a particular amount ( see Yuriy Romanov v. Russia, no. 69341/01, § 45, 25 October 2005). Furthermore, the Convention does not confer on an individual a right to enjoy any given standard of living ( see Vassilenkov v. Ukraine, no. 19872/02, § 18, 3 May 2005). 60. As regards the “family life” aspect of Article 8, the Court observes at the outset that this notion does not include only social, moral or cultural relations; it also comprises interests of a material kind ( see Merger and Cros v. France, no. 68864/01, § 46, 22 December 2004). 61. The Court also reiterates that measures which enable one of the parents to stay at home to look after the children promote family life and necessarily affect the way in which it is organised. Such measures therefore come within the scope of Article 8 of the Convention ( see, in particular, Petrovic v. Austria, 27 March 1998, § 27, Reports of Judgments and Decisions 1998 ‑ II, and Konstantin Markin v. Russia [GC], no. 30078/06, § 130, ECHR 2012 (extracts); see also, to similar effect, Weller v. Hungary, no. 4 4 399/05, § 29, 31 March 2009, and Dhahbi v. Italy, no. 17120/09, § 41, 8 April 2014). 62. The present case also concerns issues linked to the organisation of family life, albeit in a different way. The available statistics show that in the great majority of cases the legal arrangements in place – the combined method – concern women who wish to work part-time after having children. In its judgment of 28 July 2008 concerning the applicant (see paragraph 20 above), the Federal Court acknowledged that the combined method could sometimes result in the loss of the benefit, particularly in the case of women who worked part - time following the birth of their children. The Court considers that the application of the combined method in the applicant ’ s case was apt to influence her and her husband in deciding how to divide up tasks within the family and, accordingly, to have an impact on the organisation of their family and professional life. In its leading judgment ... the Federal Court also explicitly acknowledged that the combined method could have negative repercussions for someone who worked part ‑ time for family reasons, if he or she became disabled. These considerations are sufficient for the Court to find that the present complaint falls within the ambit of the “family life ” aspect of Article 8. 63. As regards the “ private life ” aspect of Article 8, the Court has had previous occasion to remark that the concept of “private life” is a broad term not susceptible to exhaustive definition. It can sometimes embrace aspects of an individual ’ s physical and social identity ( see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I). It also covers the right to personal development and to establish and develop relationships with other human beings and the outside world ( see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007 ‑ I). Lastly, the Court has held that the notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8 ( see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III, and Haas v. Switzerland, no. 31322/07, § 51, ECHR 2011). 64. The present case also concerns the “private life” aspect of Article 8 in so far as that provision guarantees the right to personal development and personal autonomy. To the extent that the combined method places individuals wishing to work part - time at a disadvantage compared with those in full-time paid work and those who do not work at all, it cannot be ruled out that this method of calculating disability will limit persons falling into the first of these categories in their choice as to how to divide their private life between work, household tasks and childcare. 65. In view of the foregoing, this complaint falls within the ambit of Article 8. ( b) Nature of the alleged discrimination 66. It is clear from these observations, and in particular from the statistical data furnished by the parties, that in the overwhelming majority of cases the combined method concerns women who wish to reduce the amount of time they spend in paid work following the birth of a child or children. Accordingly, the Court considers that the applicant is entitled to claim that she has been the victim of discrimination on the grounds of sex within the meaning of Article 14 of the Convention. 67. This finding makes it unnecessary for the Court to examine whether the refusal to grant the applicant a disability benefit also amounts in the present case to discrimination on grounds of her disability. ( c) Conclusion 68. It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case. 2. Compliance with Article 14 taken in conjunction with Article 8 of the Convention ( a ) The parties ’ submissions ( i ) The applicant 69. The applicant conceded the Government ’ s point that, in theory, the combined method applied without distinction to men and women. However, the Government appeared to overlook the issue of indirect discrimination. It was true that the combined method had the same consequences irrespective of whether the man or the woman engaged in part-time paid work and carried out household tasks. However, its effects were felt disproportionately by women, given that they were the ones concerned in the great majority of cases, as confirmed by the Government ’ s statistics. 70. In the applicant ’ s view, the Government had not addressed the question of the existence of an objective and reasonable justification for the situation complained of, but instead had merely presented detailed documents showing the different methods used to calculate the restriction of an individual ’ s capacity caused by his or her health problems. The subject ‑ matter of the application did not concern the fact that the restrictions caused by the person ’ s health problems were measured differently according to whether he or she was engaged in paid work or in household tasks, but rather the discrimination suffered by persons engaged in both types of activities simultaneously, resulting from the means of calculation on which the combined method was based. 71. The applicant sought to demonstrate that her criticisms did not relate to the idea of a combined method of assessment as such, stressing that such a method could also be implemented in a non-discriminatory way. This was borne out in particular by the case-law prior to the Federal Court judgment of 26 April 1999 (ATF 125 V 146 ... ). Before that judgment, the fact of working part ‑ time was entered into the calculation only once (during the weighting of the person ’ s activities between the paid part and the household part) rather than twice (as was currently the case, since it was already taken into account in comparing the person ’ s income with and without a disability). Under the earlier procedure, insured persons were free to assign tasks within the family as they saw fit, without running the risk of forfeiting any disability benefits if they became disabled. The hardening of the case-law operated to the detriment of part-time employees – hence, mostly women – who developed health problems, even though the disability insurance legislation had not changed. 72. In the applicant ’ s submission, the application of the combined method by the Federal Court could not be justified by considerations of feasibility or other economic considerations. The applicant referred in that regard to the findings of the St Gallen Cantonal Court, according to which the introduction of the combined method as applied under the earlier case ‑ law had resulted in an overspend of thirty-five million Swiss francs. While saving such an amount should be regarded as a legitimate aim, that aim should on no account be pursued to the principal detriment of women. 73. The applicant also submitted that stopping a benefit for the sole reason that the insured person had given birth to a child had already been found by the Court to be discriminatory ( she referred to the judgment in Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263). ( ii ) The Government 74. The Government submitted that the method of assessing disability applied by the Federal Court in the instant case, which was based on a hypothetical level of activity, was justified by the aim of disability insurance, which was to insure individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they had actually been able to carry out before becoming disabled and which they would still be able to perform if they were in good health. The aim was not to provide compensation in respect of activities which the insured persons would never have carried out even if they had remained in good health. 75. In its judgment of 28 July 2008 the Federal Court had acknowledged that the combined method could result in the loss of the benefit if the insured person had decided when he or she was still in good health – often in connection with the birth of a child – no longer to carry on a full-time paid occupation (in order to work part - time or to stop paid work altogether). However, the loss of income was not always attributable to the disability; persons in good health also suffered a drop in income if they reduced their working hours or gave up paid work following the birth of a child. 76. The Government noted that the criticism of the Federal Court ’ s case ‑ law concerning the combined method centred mainly on the fact that individuals who reduced their working hours following the birth of a child suffered a drop in income, and that they were mostly women. Nevertheless, this societal phenomenon did not result from health-related factors. Accordingly, it should not be covered by the disability insurance scheme. 77. The Federal Court had also ruled in the past that the method of assessment chosen was not based on the gender of the insured person or on any of the other characteristics enumerated by Article 14 of the Convention, but on the loss, as a result of disability, of the capacity to carry on an occupation and/or perform routine tasks. 78. The Government further maintained that the possibility of altering the method of assessing disability for insured persons who worked part - time had been discussed regularly at the political level, but that the idea had been abandoned. This showed that, despite the various political efforts, no sustainable alternative to the combined method of assessing disability had been found. 79. The Government therefore contended that Switzerland had not been in breach of Article 14. ( b ) The Court ’ s assessment ( i ) Summary of the relevant principles ( α ) Indirect discrimination 80. According to the Court ’ s settled case-law, 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, and Okpisz v. Germany, no. 59140/00, § 33, 25 October 2005). Nevertheless, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article (see Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 34, § 10, Series A no. 6; Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; and Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006 ‑ VI). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory even where it is not specifically aimed at that group ( see Hugh Jordan v. the United Kingdom, no. 24746/94, § 154, 4 May 2001 ) and that discrimination potentially contrary to the Convention may result from a de facto situation ( see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII). 81. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996 ‑ IV). The scope of this margin will vary according to the circumstances, the subject-matter and its background ( see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126 ), but the final decision as to observance of the Convention ’ s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved ( see Weller, cited above, § 28; Stec and Others, cited above, §§ 63-64; Ünal Tekeli v. Turkey, no. 29865/96, § 54, ECHR 2004 ‑ X (extracts); and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99, § 68, ECHR 2002 ‑ IV). 82. The Court further reiterates that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention (see Konstantin Markin, cited above, § 127; Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280-B; and Schuler-Zgraggen, cited above, § 67). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man ’ s primordial role and the woman ’ s secondary role in the family (see Ünal Tekeli, cited above, § 63). 83. On the other hand, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy for example ( see Stec and Others, cited above, § 52, and Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014). ( β ) Proof as regards discrimination 84. As regards the burden of proof in this sphere, the Court has previously held that, once the applicant has shown that there has been a difference in treatment, it is then for the respondent Government to show that the difference in treatment could be justified ( see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999 ‑ III, and Timishev v. Russia, nos. 55762/00 and 55974/00, § 57, ECHR 2005 ‑ XII ). As far as allegations of indirect discrimination are concerned, the applicant must adduce evidence of disproportionately harmful effects on a particular group, giving rise to a presumption of indirect discrimination; it is then for the respondent State to rebut that presumption by showing that the difference in treatment was the result of objective factors unrelated to the factor indicated by the applicant ( see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § § 188, 189 and 195, ECHR 2007 ‑ IV; see also Oršuš and Others v. Croatia [GC], no. 15766/03, § 152, ECHR 2010). 85. As to whether statistics can constitute evidence, the Court stated in the past that statistics could not in themselves disclose a practice which could be classified as discriminatory (see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effects of a general measure or de facto situation ( see Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties in finding a difference in treatment between two groups in similar situations ( see D.H. and Others, cited above, § 180, and Oršuš and Others, cited above, § 152). 86. Hence, in its decision in Hoogendijk, cited above, the Court found as follows : “ ... where an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.” ( ii ) Application of the above-mentioned principles to the present case 87. The Court considers it appropriate to examine whether there has been “indirect” discrimination in the present case. ( α ) Existence of a presumption of indirect discrimination in the present case 88. The applicant complained that the application of the combined method for calculating disability was discriminatory. According to the figures supplied by the Government ..., the combined method was applied in 4,168 cases in 2009, that is to say, in approximately 7.5% of all the decisions on disability. Of this total of 4,168, 4,045 cases (in other words, 97%) concerned women and 123 (3%) concerned men. 89. In its judgments of 28 July 2008 (see paragraph 20 above) and 8 July 2011 ..., the Federal Court itself acknowledged that the combined method of assessing disability was applied in the majority of cases to women who had reduced their working hours following the birth of a child. In their observations before the Court the Government did not dispute the fact that the combined method primarily affected women. Furthermore, in its report of 1 July 2015 ..., the Federal Council noted that the combined method was applied in 98% of cases to women (on the basis of the benefits calculated in December 2013). 90. In view of these data, the Court considers that the evidence adduced can be regarded as sufficiently reliable and significant to give rise to a presumption of indirect discrimination. ( β ) Whether there was an objective and reasonable justification for the difference in treatment 91. The Court reiterates that a difference in treatment is discriminatory if it lacks 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 paragraph 80 above). – Legitimate aim 92. In the instant case the Government endeavoured to explain the difference in treatment of the persons concerned by the rule in question, the majority of whom were women who had given birth to children, by referring to the aim of disability insurance, which was to cover individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they had actually been able to carry out previously and which they would still be able to perform if they were in good health. 93. The Court considers that the aim pursued by the disability insurance legislation, relied on by the Government, is a legitimate aim apt to justify the differences observed. The Court must therefore ascertain whether the treatment to which the applicant was subjected was reasonable and proportionate. – Proportionality 94. The Court notes that the applicant originally worked full - time, as a shop assistant, but had to stop work in 2002 because of back problems. She was granted a 50% disability benefit for the period from 20 June 2002 to the end of May 2004. The benefit was stopped following the birth of her twins owing to the application of the combined method, based on the assumption that – according to her own statements to the Office – if she had not become disabled, the applicant would have reduced her working hours after the birth of her children. 95. The Government argued that the combined method was not based on the gender of the insured person. They submitted that it simply took into consideration the loss of the insured person ’ s capacity, as a result of disability, to carry on an occupation or perform routine tasks, or both. In the Government ’ s view, the loss of income suffered by individuals who reduced their working hours or stopped paid work following the birth of a child was an entirely separate matter, as family considerations of this kind could apply both to persons with a disability and to those in good health. 96. The Court considers, as stated above, that the aim of disability insurance advanced by the Government – namely to cover individuals against the risk of becoming unable, owing to a disability, to engage in paid work or perform routine tasks which they would actually be able to perform if they were in good health – is in itself consistent with the essence and the constraints of such an insurance scheme, which has limited resources and must therefore be guided in part by the principle of control of expenditure. Nevertheless, the Court considers that this goal must be assessed in the light of equality between the sexes, since the case concerns alleged discrimination against women. As observed above, very weighty reasons have to be put forward before a difference of treatment based on this ground can be regarded as compatible with the Convention ( see paragraph 82 above ). The Court thus concludes that the authorities ’ margin of appreciation was considerably reduced in the present case. 97. The Court is well aware that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law (see Winterwerp v. the Netherlands, 24 October 1979, § 46, Series A no. 33). Nevertheless, it notes, on the basis of the relevant domestic law and practice set out above, that the applicant would in all likelihood have obtained a partial disability benefit had she worked full - time or devoted her time entirely to household tasks. Furthermore, as she had previously worked full ‑ time she was initially granted such a benefit, which she continued to receive until the birth of her children. It follows clearly that the refusal to grant her entitlement to a benefit was based on her assertion that she wished to reduce her paid working hours in order to take care of her home and her children. In practice, for the great majority of women wishing to work part ‑ time following the birth of a child, the combined method is a source of discrimination. 98. The Court also observes that the application of the combined method in accordance with the case-law of the Federal Court has been the subject of criticism for some time from certain courts and legal commentators. Hence, in its judgment concerning the applicant (see paragraph 20 above), the Federal Court explicitly conceded that the interplay between the “household” and “ paid employment ” aspects was not taken sufficiently into account in the combined method and that this could result in a complete loss of benefit where the insured person stopped paid work or reduced his or her working hours, often following the birth of a child. Moreover, this finding was upheld by the Federal Council in its report of 1 July 2015 ... The Federal Council added that the combined method also attracted criticism because the fact of working part - time was taken into account twice: once in determining the person ’ s income in the absence of a disability, and again in weighting the relative proportions of the two aspects. 99. In its leading judgment on the subject, the Federal Court acknowledged that the combined method was applied in the majority of cases to women and was open to question. However, it considered that it was for the legislature rather than the courts to propose a solution that would take greater account of sociological developments in society and the situation of half-time workers, most of whom were women ... 100. The Court further observes that, in its report of 1 July 2015, the Federal Council summarised and analysed in detail the criticisms of the combined method. It acknowledged that the combined method could result in a lowering of the degree of disability recognised and that a question could arise regarding possible discrimination, at least of an indirect nature. In the Court ’ s view, these are clear indications of a growing awareness of the fact that the combined method is no longer consistent with efforts to achieve gender equality in contemporary society, in which women increasingly and legitimately seek to reconcile family life and career. 101. The Court also notes that even some specialised tribunals, such as the Cantonal Court in the instant case (see paragraph 18 above), support a method that would be more favourable to insured persons who work part ‑ time and would take due account of their disability in both the “paid employment ” and “household tasks ” components. Moreover, the Court observes that several methods of calculating disability exist under Swiss law ... Accordingly, the Court notes that alternative calculation methods are possible which would take greater account of women ’ s choice to work part ‑ time following the birth of a child, thus enabling the aim of greater gender equality to be pursued without jeopardising the objective of disability insurance. 102. In addition to these general considerations concerning the combined method, the Court considers that the refusal to grant the applicant even a partial benefit has significant practical repercussions for her, even assuming that she could work part - time. Her notional income, calculated on the basis of half-time work, was estimated by the Office at only CHF 24,293 (approximately EUR 23,654) when her degree of disability was calculated (see paragraph 15 above). Conclusion 103. In view of the foregoing, the Court is not persuaded that the difference in treatment to which the applicant was subjected – having been refused a disability benefit owing to the application of the combined method of calculating the degree of disability, used for persons working part - time – had a reasonable justification. 104. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 in the present case. ... | The Court was not convinced that the difference in treatment to which the applicant had been subjected had any reasonable justification and held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. The Court accepted the Swiss Government’s argument that the aim of disability insurance was to insure individuals against the risk of becoming unable to engage in paid employment or perform routine tasks which they would have been able to carry out had they remained in good health. However, the Court considered that this aim had to be assessed in the light of gender equality. In the applicant’s case, the Court observed that she would probably have received a partial disability allowance if she had worked full time or had devoted her time entirely to household tasks. Having previously worked full time, she had originally been granted the allowance and had continued to receive it until her children were born. It was thus clear that the decision refusing her entitlement to the allowance had been based on her assertion that she wished to reduce her working hours in order to take care of her children and her home. In practice, for the vast majority of women wishing to work part time following the birth of their children, the combined method, which in 98% of cases was applied to women, was a source of discrimination. |
238 | Persons arrested or under criminal prosecution | II. RELEVANT DOMESTIC LAW A. Code of Administrative Offences of the Russian Federation 29. The relevant provisions of the Code of Administrative Offences (in force at the material time) read as follows : Article 12.26 : Driver ’ s refusal to take an alcohol test “ Refusal by a driver of a lawful demand of a police officer to take an alcohol test shall result in a driving ban of between eighteen months and two years. “ Article 19.3 : Persistent refusal to obey lawful police orders “ Failure to obey a lawful order or demand by a police officer ... in connection with the performance of their official duties related to maintaining public order and security, or impeding the performance by them of their official duties, shall be punishable by a fine of between five and ten months ’ minimum wage or by up to fifteen days ’ administrative detention. ” Article 20.1 : Minor disorderly acts “ 1. A disorderly act, that is to say, a breach of public order in the form of an open disregard for the public accompanied by uttering obscenities in public places, abusively pestering people or destroying or damaging other people ’ s property, shall be punishable by a fine equivalent to between five and ten months ’ minimum wages or by up to fifteen days ’ administrative detention. ” B. Criminal Code of the Russian Federation 30. The relevant provisions of the Criminal Code ( as in force at the material time) read as follows: Article 318 : Use of violence against a public official “1. The use of violence not endangering life or health, or a threat to use such violence, against a public official or his or her relatives in connection with the performance of his or her duties shall be punishable by a fine equivalent to between 200 and 500 months ’ minimum wages ... or by three to six months ’ detention or up to five years ’ deprivation of liberty...” Article 319 : Insulting a public official “Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of between fifty and 100 months ’ minimum wages ..., 120 to 180 hours ’ mandatory work or six months to a year ’ s correctional work.” C. The Police Act (Law no. 1026-I of 18 April 1991) 31. The relevant provisions of the Police Act, in force at the material time, read as follows: Section 11 : Rights of the police “ In the performance of their duties, the police shall have the following rights: ... (14) to keep legally established registers of persons, legal entities, objects and facts and to use the data from the registers; to use IT systems, video and audio recording, film and photo equipment, as well as other technical devices, for documenting their activities; (15) to make ... film and video - recordings ... of suspects and accused persons who are under administrative arrest and of those in respect of whom there are grounds to institute administrative proceedings ... if it is impossible to identify them ... (16) to carry out operational and search measures in accordance with federal law ... ” D. The Operational-Search Activities Act (Law no. 144-FZ of 12 August 1995) 32. The Act contains an exhaustive list of operational-search measures. It includes, in particular, observation (section 6 § 6) and specifies that the operational-search activities may be carried out with the use of video- and audio-recording (section 6, third paragraph ). 33. The operational-search activities may only be carried out, in particular, if there is a pending criminal case (section 7 § 1) or if there are indications of an offence being planned, committed or having been committed but the information is insufficient for an immediate taking of a decision on the institution of criminal proceedings (section 7 § 2 (1)). 34. In its decision no. 86-O of 14 July 1998, the Constitutional Court of the Russian Federation found as follows: “Section 6 [of the Operational-Search Activities Act] only lists the types of operational-search measures but does not determine the form or conditions in which they should be carried out. Operational-search measures, including observation, may only be carried out ... in the circumstances listed in section 7 [of the Act]. It follows, this federal law does not allow [the authorities] to collect, to store, to use or to disseminate information on the private life of the individual who is being investigated unless it is linked to detecting, preventing, curtailing or solving crimes, detecting or identifying perpetrators or other lawful objectives ... Moreover, paragraph 4 of part 7 of section 5 [of the Act] prohibits the operational-search bodies and their officials from disseminating the information concerning the private and family life or the dignity and reputation of citizens, which they had obtained as a result of operational-search measures, without the citizens ’ consent ... ” E. The Mass Media Act ( Law no. 2124-I of 27 December 1991 ) 35. The relevant provisions of the Mass Media Act read as follows: Section 38 : The right to information “ Through mass media, private citizens shall have the right to receive accurate information about the activities of State bodies and organisations, public associations and their officials. ” Section 50 : Covert recording “ The dissemination of reports and materials prepared with the use of hidden audio and video-recording, photography and cinematography shall be allowed in the following cases: ( 1) if it does not infringe citizen ’ s constitutional rights and freedoms; ( 2) if it is necessary to protect the public interest and if measures have been taken to prevent possible identification of third parties; ( 3) if the recording is demonstrably in accordance with a decision of a court of law. ” Section 57 : Absolution from responsibility “ The editorial office, editor-in-chief and journalist shall bear no responsibility for the dissemination of information that ... tarnishes the honour and dignity of private citizens ... or infringes the rights and lawful interests of individuals ... : ( 6) if this information is the literal reproduction of reports and materials or of extracts thereof disseminated by another mass medium which can be ascertained and called to account for a particular breach of the legislation of the Russian Federation on mass media. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 36. The applicant complained that the unlawful filming of him at the police station and broadcasting of that footage on television had breached his right to respect for his private life guaranteed by Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 37. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 38. The Government submitted that a person who had committed offences or crimes should envisage various restrictions on his or her rights, including the right to respect for private life. After the applicant had committed a breach of public order, caused damage to the honour and dignity of the authorities and been escorted to the police station, his private life had been brought into the public domain. The video - recording had been made openly, the applicant had been aware that he was being filmed for television and had not objected to it. In fact, he had asked for the media to be brought to the police station. The Government further claimed that the applicant had been filmed in accordance with the law, with a view to securing evidence of his unlawful behaviour and establishing his identity as an offender. The Murman television company had acted lawfully, because under the relevant legislation it was permitted to seek and obtain information on any subject and to broadcast reliable information about the behaviour of a State official. The TV-21 and Blits television companies had merely rebroadcast the footage filmed by Murman. The Government contended that neither the sending of the videotape by the police chief to the public prosecutor ’ s office nor its circulation for screening to the members of the regional Duma had amounted to “dissemination of information”. 39. The applicant pointed out that, prior to his conviction in administrative and criminal proceedings ( on 27 May 2003 and 29 September 2005 respectively ), he should have been presumed innocent at the time the video - recording had been made and broadcast. He had not agreed to being filmed and the cameraman had given evidence in the civil proceedings that, at the request of the police chief, part of the footage had been filmed covertly. The applicant emphasised that the broadcasting of the footage had not been in the public interest but had solely been intended to tarnish his reputation. It could not have been necessary for the purposes of identifying him because his identity had already been established by the time the cameraman had arrived. Moreover, the police officers had not used their own equipment to film him and had instead invited a television cameraman who had happened to be a friend of the police chief. 2. The Court ’ s assessment (a) Existence of an interference 40. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person ’ s name or image. A person ’ s image constitutes one of the chief attributes of his or her personality, as it reveals the person ’ s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one ’ s image is thus one of the essential components of personal development. It mainly presupposes the individual ’ s right to control the use of that image including the right to refuse publication thereof ( see Küchl v. Austria, no. 51151/06, § 58, 4 December 2012; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § § 95-96, ECHR 2012; Eerikäinen and Others v. Finland, no. 3514/02, § 61, 10 February 2009; Khuzhin and Others v. Russia, no. 13470/02, § 115, 23 October 2008; Gurgenidze v. Georgia, no. 71678/01, § 55, 17 October 2006; Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005 ‑ I, and Von Hannover v. Germany, no. 59320/00, §§ 50-53, ECHR 2004 ‑ VI). 41. The Court has held on various occasions that the recording of video in the law-enforcement context or the release of the applicants ’ photographs by police authorities to the media disclosed an interference with their right to respect for private life. In the above -mentioned Khuzhin and Sciacca cases, the police made the applicants ’ photographs from the official file available to the press without their consent. In Peck v. the United Kingdom (no. 44647/98, § § 62-63, ECHR 2003 ‑ I ), the disclosure to the media for broadcast use of video footage of the applicant whose suicide attempt was caught on surveillance television cameras was found to be a serious interference with the applicant ’ s private life, notwithstanding that he was in a public place at the time. In a case where the police regulated the security camera in the custody suite of a police station so that it could take clear footage of the applicant and later showed the video to witnesses and during the trial in a public court room, the Court noted that the ploy adopted by the police went beyond the normal or expected use of this type of camera and the recording of such footage amounted to the processing or collecting of personal data about the applicant. Noting that the footage had not been obtained voluntarily or in circumstances where it could be reasonably anticipated that it would be made, the Court considered that the recording and use of the video disclosed an interference with the applicant ’ s right to respect for private life (see Perry v. the United Kingdom, no. 63737/00, § § 39-43, ECHR 2003 ‑ IX ). 42. In the instant case, the applicant was recorded on video while he was at the Severomorsk police station and part of that footage was broadcast on regional television the following day. The Court observes that the applicant consistently denied – in the proceedings before the domestic courts and before the Court – that he had agreed to being filmed. The Government were unable to produce any evidence of the applicant ’ s consent either to being recorded on video – especially given that the recording was partly carried out covertly – or to having the footage broadcast on television. 43. The parties did not dispute that the cameraman from Murman and subsequently the crew of Northern Fleet had arrived at the police station upon the invitation of the police chief with the purpose of capturing the applicant ’ s behaviour on camera. In their submissions, the Government indicated that the police chief had given the media an “official authorisation” to film the applicant. He did not impose any conditions on how the footage would subsequently be used. It follows that a State official had borne direct responsibility for granting the media access to the applicant ’ s image and enabling them to retain the footage and use it for their own purposes, including broadcasting it on public television. 44. In these circumstances and in the light of its above-cited case-law (see, in particular, the Peck and Perry judgments ), the Court finds that the decision of the police chief to invite the television crews and to allow them to record the applicant ’ s image inside the police station and to take the tapes with them, without any restriction on their subsequent use, amounted to an interference with the applicant ’ s right to respect for private life which was attributable to the State. Whether that interference could be considered justified in the particular circumstances of the case will be the subject of its analysis below. (b) Justification for the interference 45. The Court reiterates that, in order to be justified under Article 8 of the Convention, an interference with the applicant ’ s right to respect for private life must be “in accordance with the law”, pursue one or more of the legitimate aims contemplated in paragraph 2 of this Article and be “necessary in a democratic society”. 46. The first requirement of paragraph 2 of Article 8 is that the interference should be “in accordance with the law”. On the facts, the Court notes that the police detained the applicant and brought him to the station on suspicion that he had attempted to drive a car under the influence of alcohol. The applicant could have dispelled the suspicion by taking an alcohol test but he vehemently refused to do so. Instead of showing goodwill and co-operating with the police, he turned disorderly and violent against the officers, abusing them verbally, pulling at their uniforms, disrupting the work of the station and wreaking havoc on the equipment. The Court nevertheless emphasises that, no matter how unacceptable or provocative the applicant ’ s behaviour was, the police officers should have firmly stood guard as custodians of the law and their actions required a solid legal basis. 47. The Russian courts in the civil proceedings and the Government in their observations before the Court cited section 11(15) of the Police Act as a justification for the police chief ’ s decision to invite television cameras and to have the applicant recorded on video. Section 11(15) of the Police Act granted the police the right to take fingerprints or to film individuals if it was impossible to identify them (see paragraph 31 above). The Court fails to see how that provision could be applicable in the instant case, where the applicant ’ s identity had been established shortly after he had arrived at the police station, when an officer had searched his clothing and found his professional identity card and the applicant had confirmed his name and occupation (see paragraph 6 above). For the first time in the proceedings before the Court the Government also invoked section 11 (14) of the Police Act concerning the police ’ s power to keep various legally established registers. Their submissions were, however, confined to quoting the text of this provision, without explaining to what extent it could be relevant in the circumstances of the present case which did not concern the recording of the applicant ’ s image for the purposes of any such register. 48. The Government also claimed that the recording was intended to secure evidence of the applicant ’ s unlawful behaviour. The Court notes, on the facts, that at the time the applicant was filmed, he had neither been formally detained nor charged with any offence, administrative or otherwise, and that no proceedings had been initiated against him. The Government did not cite any provision of Russian law which would have allowed the police to collect evidence prior to the institution of any kind of proceedings and in the absence of any procedural decision to that effect. As matters transpired, the video-recording was not included in evidence in the administrative proceedings and was not mentioned in the judgment (see paragraph 21 above). It is nevertheless not inconceivable that the filming was performed in accordance with the Operational-Search Activities Act which allowed the police to carry out “observation” of individuals who were suspected of being in the process of committing criminal offences, using audio and video equipment (see paragraphs 32 and 33 above). This could be legally done, even if a decision on the institution of criminal proceedings were to be taken at a later stage rather than immediately (ibid.) 49. In any event, the interference in this case was not limited to the recording of the applicant ’ s image, but also included making the footage available to the media, without restricting its subsequent use. Assuming that the footage was obtained in the framework of the operational-search activities, the same Operational-Search Activities Act expressly prohibited police officers from disseminating such information without the consent of the individual concerned. The Russian Constitutional Court reinforced that prohibition by pointing out that the information may only be used for the purposes of law enforcement, such as crime detection or prevention or identification of perpetrators (see paragraph 34 above). It follows that, in the absence of the applicant ’ s consent, the release of the video recording to the regional television was in flagrant breach of the domestic law. 50. Finally, as regards the Government ’ s reliance on the Media Act, the Court reiterates that in the present case it is not concerned with the lawfulness of the actions of television companies but with the legal basis for the actions of the police which was conspicuously lacking. 51. The Court reiterates that, where it has been shown that an interference was not in accordance with the law, it is not necessary to investigate whether the interference pursued a “legitimate aim” or was “necessary in a democratic society” (see Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 129, 13 January 2009; Sciacca, cited above, § 30, and Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006). 52. There has therefore been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 53. The applicant complained under Article 7 of the Convention that his conviction, first in administrative proceedings and later in criminal proceedings, amounted to double jeopardy. The Court considers that this complaint falls to be examined from the standpoint of Article 4 of Protocol No. 7 to the Convention which provides, in the relevant part, as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State ... ” A. Admissibility 54. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 55. The Government evaluated the facts of the case and concluded that the applicant had been found criminally liable in respect of acts that had been committed in a different place and time from those that had formed the basis of his administrative conviction. In addition, those offences had been different in terms of how dangerous to the public they were. The Government maintained that there had been no violation of Article 4 of Protocol No. 7. 56. The applicant argued that the time period during which the offences defined in Article 19.3 and 20.1 of the Code of Administrative Offences and Article 318 and 319 of the Criminal Code had been committed was the same, and that it had lasted from the moment he had arrived at the police station ( 2 p.m. ) until his departure at 7.30 p.m. Furthermore, it appeared from the domestic judgments that both the administrative and criminal offences had targeted the same police officers T., U., K., S., M. and others who had been granted victim status in the criminal proceedings. Finally, the actus reus of the above offences largely overlapped and the criminal offences did not contain any elements that had not been previously examined in the administrative proceedings. The applicant emphasised that the judge who had examined the administrative charges against him had had legal grounds to discontinue those proceedings and to refer the matter to a public prosecutor if she had considered that there were indications of a criminal offence; however, she had not chosen to do so which meant, by converse implication, that the applicant ’ s acts had not amounted to a criminal offence. Her determination of the case was therefore binding on the other public authorities. 2. The Court ’ s assessment 57. The applicant alleged a violation of the non bis in idem principle, that is to say the guarantee against the duplication of proceedings in connection with the same offence. The Court notes that the events of 27 April 2003 gave rise to two separate sets of proceedings against the applicant: in the first round of proceedings he was found guilty under the Code of Administrative Offences and ordered to pay a fine, and in the second set of proceedings he was found guilty under the Criminal Code and ordered to pay a larger fine. The Court accordingly has to examine three issues: whether the first proceedings were criminal in nature; whether the offences for which the applicant was prosecuted were the same ( idem ), and whether there was a duplication of proceedings ( bis ). (a) Whether the first proceedings were criminal in nature 58. By the Town Court ’ s judgment of 14 May 2003, as upheld on appeal by the Regional Court on 27 May 2003, the applicant was found guilty of offences which were classified as “administrative” under domestic law. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of non bis in idem for the purposes of Article 4 § 1 of Protocol No. 7. Otherwise, the application of that provision would be left to the discretion of the Contracting States to a degree that might lead to results incompatible with the object and purpose of the Convention. The notion of “penal procedure” within the meaning of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 52, ECHR 2009, with further references ). 59. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others v. the Netherlands, 8 June 1976, § 85, Series A no. 22 ), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. That, however, does not preclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin, cited above, § 53, with further references ). 60. As regards the classification of the offences under domestic law, the Court notes that under Articles 12.26, 19.3 and 20.1 of the Code of Administrative Offences, they were all characterised as “ administrative ” ones. As indicated above, however, the classification under domestic law is not decisive. The Court indeed recalls that the sphere defined in the Russian legal system as “ administrative ” embraces certain offences that have a criminal connotation but are too trivial to be governed by criminal law and procedure ( ibid., § 54, with further references). 61. With respect to the nature of the offences, the Court notes that the applicant was found guilty of three administrative offences: refusing to take an alcohol test, persistently refusing to obey lawful police orders and committing minor disorderly acts. However, since there was no allegation of a repetition of proceedings in respect of the first offence, the Court will focus its examination on the second and third offences. The aim of those two offences was to guarantee the protection of human dignity and public order, that is to say, the values and interests which normally fall within the sphere of protection of criminal law (compare with Sergey Zolotukhin, cited above, § 55, and Kadubec v. Slovakia, 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI ). The Court reiterates that the reference to the “minor” nature of the acts did not, in itself, preclude their classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 104, ECHR 2003 ‑ X ). 62. The Court further recalls that the degree of severity of the measure is determined by reference to the maximum potential penalty for which the relevant law provides (see Sergey Zolotukhin, cited above, § 56). The Code of Administrative Offences provided for fifteen days ’ imprisonment as the maximum penalty in respect of those two offences. That the applicant was eventually ordered to pay a fine does not diminish the importance of the fact that his liberty was initially at stake ( see Ezeh, cited above, § 120). 63. In conclusion, the general character of the offences of “persistent refusal to obey lawful police orders ” and “minor disorderly acts”, together with the severity of the potential penalty, were sufficient to bring the applicant ’ s conviction for those offences within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7. (b) Whether the offences for which the applicant was prosecuted were the same ( idem ) 64. The Court will next examine whether the applicant was prosecuted for the same offences. The applicable test has recently been clarified in the Sergey Zolotukhin judgment (cited above, §§ 78-84). The Court held that it must disregard the legal characterisation of the offences in domestic law and take the underlying factual circumstances as its focal point of comparison. 65. In the present case, the facts that gave rise to the administrative fine imposed on the applicant related to his unruly behaviour at the Severomorsk police station on 27 April 2003. The judgment of 14 May 2003 stated that he had uttered obscenities and been disrespectful to the police officers K., S., U., P., G. and M. The same facts formed the central element of the criminal charges against the applicant and the judgment of 8 August 2005 referred to the same behaviour (“uttered obscenities”, “ caused damage to his dignity and undermined his authority”) that had taken place on the same day at the same police station, with the same police officers having been recognised as victims and cross-examined during the trial. The criminal charges therefore encompassed the facts of the administrative offence in its entirety and, conversely, the administrative offence did not contain any elements that were not present in the criminal offences with which the applicant was charged. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. (c) Whether there was a duplication of proceedings ( bis ) 66. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of that provision if it has acquired the force of res judicata. This is the case when the decision is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references). 67. In the instant case the Town Court ’ s decision on the administrative offences was upheld on appeal and became “final” on 27 May 2003, two months before the regional prosecutor requested the Regional Court to authorise the institution of criminal proceedings against the applicant. 68. Since Article 4 of Protocol No. 7 applies even where an individual has merely been prosecuted in proceedings which have not resulted in a conviction (see Sergey Zolotukhin, cited above, § 110, with further references), the fact that the recovery of the fine imposed under Article 319 of the Criminal Code became time-barred has no bearing on the applicant ’ s allegation that he was prosecuted, tried and convicted of that charge for a second time. Accordingly, the Court considers that there was a duplication of proceedings. (d) Conclusion 69. The Court has found that the applicant was convicted of “persistent refusal to obey police orders” and “minor disorderly acts” in administrative proceedings which are to be assimilated to “penal procedure” within the autonomous Convention meaning of that term. After his conviction had become final, criminal charges relating to the same set of factual circumstances were brought against him and he was convicted again in the proceedings that followed. 70. There has accordingly been a violation of Article 4 of Protocol No. 7. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 71. The applicant also complained under Articles 3 and 5 of the Convention that he had been unlawfully arrested and ill-treated at the police station on 27 April 2003. Since his application was only lodged on 18 April 2004, that is to say almost a year later, this part of the application is obviously out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 72. Lastly, the applicant complained under Articles 6 and 13 of the Convention of certain procedural irregularities in the criminal proceedings against him. The Court has examined those complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 73. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 74. The applicant claimed 115,000 Russian roubles (RUB) – the equivalent of 2,580 euros (EUR) on the date of the submission of his claims – in respect of pecuniary damage, which comprised the legal fees paid to his defence team in the criminal proceedings and the fine of RUB 30,000. He further claimed RUB 250,000 (EUR 5,610) in respect of non-pecuniary damage. 75. The Government submitted that they were under no obligation to reimburse the fine because it had been lawfully imposed on the applicant. They considered that the amount of non-pecuniary damage was unreasonable. 76. The Court considers that the applicant incurred both pecuniary and non-pecuniary damage in connection with the duplication of proceedings against him and the broadcasting of the footage filmed at the police station. Accordingly, it awards him an aggregate amount of EUR 5,000 in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 77. The applicant also claimed EUR 450 for costs and expenses incurred before the Court. 78. The Government did not comment on this part of the claims. 79. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 450 for the proceedings before it, plus any tax that may be chargeable to the applicant. C. Default interest 80. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, as in the absence of the applicant’s consent, the release of the video recording to the regional television had been in flagrant breach of the domestic law. The interference with the applicant’s right to respect for private life was therefore not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. |
945 | Freedom of expression | RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic law and practiceIndependence and impartiality of courts Independence and impartiality of courts Independence and impartiality of courts 75. The relevant provisions of the Constitution of the Republic of Lithuania read: Article 109 “In the Republic of Lithuania, justice shall be administered only by courts. When administering justice, judges and courts shall be independent. When considering cases, judges shall obey only the law. ...” Article 114 “Interference by any institutions of State power and governance, Members of the Seimas or other officials, political parties, political or public organisations, or citizens with the activities of a judge or court shall be prohibited and shall incur liability as provided for by law. ...” 76. Article 7 §§ 1, 2 and 4 of the Law on Administrative Procedure establishes that when administering justice, judges and courts are independent and obey only the law. They examine administrative cases on the basis of the law, and under conditions which do not enable any external influence on them. Interference with the activities of judges and courts by State institutions, the Seimas and its members, or any other individuals or entities is not allowed and incurs liability under the law. Should such interference occur, the judge or court must respond in accordance with the law. Conduct of pre-trial investigations 77. Article 2 of the Code of Criminal Procedure states that prosecutors and pre-trial investigation authorities must, in each case where there are indications that a criminal activity may have been committed, take all the actions provided for by law which are within their remit in order to complete the investigation within the shortest possible time and to shed light on the criminal activity. 78. Article 170 §§ 1 and 2 of the Code of Criminal Procedure provides that the prosecutor has the right to conduct a pre-trial investigation or to carry out separate investigative actions. When the investigation or separate investigative actions are carried out by a pre-trial investigation officer, the prosecutor must supervise the investigation. 79. The Recommendations on the actions of a prosecutor when organising and supervising a pre-trial investigation, approved by the Prosecutor General ’ s order no. I-86 of 19 June 2008 and valid at the material time, provided that the chief prosecutor or the deputy chief prosecutor of a given prosecutor ’ s office were responsible for the supervision of the pre-trial investigation carried out by a prosecutor of that office (point 15). A prosecutor could give instructions orally or in writing (point 25). 80. Article 63 § 1 of the Code of Criminal Procedure provides that procedural decisions taken by a prosecutor during a pre-trial investigation can be appealed against before a senior prosecutor. However, in line with Article 181 § 1 of that Code, a prosecutor ’ s refusal to grant access to the investigation file has to be appealed against before a pre-trial investigation judge. 81. The Recommendations on granting access to the pre-trial investigation file to the parties to the proceedings, approved by the Prosecutor General ’ s order no. I-58 of 18 April 2003 and valid at the material time, provided that when deciding whether to grant such access, the prosecutor had to assess whether it might interfere with the success of the investigation (point 13). Access to the investigation file could be denied, inter alia, where the essential data of the investigation had not been established; material objects had not been examined; there was a risk that material objects could be damaged or lost; or the investigation concerned allegations of sexual offences (point 14). Duties and liability of prosecutors 82. Article 118 of the Constitution provides that when performing their duties, prosecutors must be independent and obey only the law. The Prosecutor General is appointed and dismissed by the President upon the assent of the Seimas. 83. At the material time, Article 4 §§ 1, 2 and 5 of the Law on the Prosecution Service provided that the Prosecutor General was the head of prosecution service and was accountable to the President and to the Seimas. The Seimas established the priorities for the activities of prosecutors ’ offices and ensured their parliamentary supervision. The Prosecutor General had the duty to inform the Government and the public about the activities of prosecutors ’ offices. 84. At the material time, Article 4 § 3 of the Law on the Prosecution Service provided that procedural activities of prosecutors were supervised by senior prosecutors and by courts, who had the authority to establish procedural violations and to annul unlawful decisions. 85. At the material time, Article 40 of the Law on the Prosecution Service established the following disciplinary penalties: (1) warning; (2) reprimand; (3) relegation to a lower qualification rank; (4) demotion; and (5) dismissal. 86. At the material time, the Regulations on the conduct of disciplinary inquiries and application of disciplinary penalties to prosecutors, approved by the Prosecutor General ’ s order no. I-9 of 30 January 2007, provided that when choosing a disciplinary penalty, the following criteria had to be taken into account: the nature of the disciplinary offence committed, the reasons for its commission, the type of misconduct, the consequences of the offence, and other relevant circumstances (point 6.2). Parliamentary inquiries 87. At the material time, Article 49 § 9 of the Statute of the Seimas provided that parliamentary committees had, among others, the following powers: (1) when performing parliamentary supervision, to hear information and reports by ministries and other State institutions on the compliance with laws and other legal instruments; and (2) on their own initiative or at the request of the Seimas, to carry out parliamentary inquiries into specific problems and to provide their conclusions to the Seimas. 88. At the material time, Article 56 § 4 of the Statute of the Seimas provided that when carrying out parliamentary inquiries at the request of the Seimas, parliamentary committees acted in accordance with Articles 75 and 76 of the Statute, which regulated ad hoc parliamentary commissions of inquiry and control, and they had the same powers as those commissions (see paragraph 89 below). 89. Article 75 § 3 of the Statute of the Seimas provides that the powers of ad hoc parliamentary commissions of inquiry and control are established by law. Article 3 § 2 of the Law on Ad Hoc Parliamentary Commissions of Inquiry and Control states that when investigating issues assigned to them and in the exercise of their powers, the said commissions may not interfere with the activities of courts, judges, prosecutors and pre-trial investigation officers, in relation to the conduct of a pre-trial investigation or judicial examination of a case. 90. In its ruling of 4 April 2006 the Constitutional Court held as follows: “In a democratic State governed by the rule of law, Parliament – the representation of the Nation – cannot be denied the power to take measures, inter alia ... to receive information about various processes taking place in the State and society, about the situation in various areas of life and the problems arising. Otherwise Parliament ... would be unable to properly discharge its functions and adopt the necessary decisions ... In accordance with the constitutional principle of the separation of powers, and other relevant provisions of the Constitution, it must be concluded that the Seimas does not have the power to create such ad hoc commissions of inquiry which, in the course of their investigation, would interfere with the powers of other institutions. For example, an ad hoc parliamentary commission of inquiry may not take over the constitutional powers of courts or otherwise interfere with the implementation of their constitutional remit, or undermine the independence of judges and courts in the course of the administration of justice, let alone administer justice by itself ... However, [the aforementioned limitations] do not mean that ad hoc parliamentary commissions of inquiry may not have any powers whatsoever with respect to State or municipal institutions, their officials and other persons. Such powers may be established by law, in compliance with the Constitution.” Relevant international and comparative material 91. At its 98th plenary session, held on 21-22 March 2014, the European Commission for Democracy through Law (Venice Commission) adopted the Amicus Curiae brief in the case of Rywin v. Poland (nos. 6091/06, 4047/07 and 4070/07), which at that time was pending before the European Court of Human Rights. Its relevant parts read: “ 7. Parliamentary committees of inquiry are an instrument for what is usually referred to as the ‘ control ’, ‘ supervisory ’ or ‘ oversight ’ function of parliament, the essence of which is to oversee and scrutinise the work of the executive branch. The main purpose of this supervision is to ensure democratic political accountability and to improve the transparency and efficiency of the government and the administration. But the supervisory function may also provide parliament with information of relevance to its own legislative and budgetary procedures. ... 19. Parliamentary committees of inquiry conduct processes that are essentially of a political nature and which should not be confused with criminal investigations and proceedings. Such committees should not assess or pronounce themselves on the question of criminal responsibility of the persons covered by the inquiry, which should be for the public prosecutor and the courts alone to assess. 20. At the same time, it is in the nature of (alleged) political ‘ scandals ’ that they may give rise to parallel processes, so that a case which is under parliamentary inquiry may at the same time be subject both to administrative inquiries and to legal investigations or proceedings. There is in itself nothing unusual or illegitimate in this. But it does put extra responsibility on all parties involved to ensure that proper distance is kept between the parliamentary (political) inquiry and the criminal investigations and legal proceedings before the courts ... 21. ... For such procedures to unduly interfere with the rights protected under Article 6 [of the European Convention on Human Rights] they would have to interfere with and in some way unduly influence the proceedings before the courts ... which can only be assessed on the basis of the individual case at hand. ... 28. A basic premise for the Venice Commission is that parliaments as autonomous institutions distinct from the judiciary cannot be impeded from carrying out their own inquiries. The composition of a parliamentary committee is always the result of a political choice. Its mandate is meant to be temporary. Even when they look into the possibly criminally relevant conduct of individual persons, parliamentary committees of inquiry conduct processes that are essentially of a political nature, and which should not be confused with criminal investigations and proceedings. The result of these activities does not alter the legal order. The report which closes its work is in itself only an incentive to parliamentary discussion. The ultimate aim of the committees ’ investigations is transparency with a view of ensuring that the public is informed of matters which affect the res publica (the public good). 29. ... Searching for offences cannot be the only goal of the inquiry conducted by a parliamentary committee, or even the main purpose of its creation. This would be unconstitutional, even if domestic law provides no sanction. Indeed, the means conferred to the committee must always serve the jurisdiction of the parliament in a system of separation of powers – either to establish the responsibility of government and ministers or to collect information necessary for more effective legislation or to present political recommendations to government. 30. Even if identical items may be subject to both criminal proceedings and a parliamentary inquiry, the aim should always be different. The criminal investigation should lead to an individual legal measure, the conviction or acquittal of the accused. The committee of inquiry has no power over individuals, except to call them to testify.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION 92. The applicant complained that she had not received a fair hearing by an independent and impartial tribunal in the disciplinary proceedings against her because of the political and media involvement in the case. She relied on Article 6 §§ 1 and 2 of the Convention, the relevant parts of which read: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” AdmissibilityApplicability ratione materiae Applicability ratione materiae Applicability ratione materiae (a) Article 6 § 1 of the Convention 93. The parties did not dispute the applicability of Article 6 § 1 of the Convention in the present case. 94. The Court has previously found that provision to be applicable under its civil head to “ordinary labour disputes” between civil servants and the State, including those relating to recruitment/appointment, career/promotion, transfer and termination of service (see Baka v. Hungary [GC], no. 20261/12, § 105, 23 June 2016, and the cases cited therein). 95. In the present case, the applicant was subject to disciplinary proceedings where one of the possible penalties was dismissal (see paragraph 85 above). She was found to have committed disciplinary violations and demoted to a lower position in the prosecution service (see paragraph 26 above), which penalty she contested before the administrative courts (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, 19 April 2007). In such circumstances, the Court is satisfied that, in accordance with its established case-law, Article 6 was applicable to the disciplinary proceedings against the applicant under its civil head. (b) Article 6 § 2 of the Convention 96. The Government submitted that Article 6 § 2 of the Convention was inapplicable ratione materiae because the disciplinary proceedings had not concerned a determination of a criminal charge against the applicant. 97. The applicant contested the Government ’ s submission. 98. The Court observes that the proceedings against the applicant were aimed at determining whether she had failed to properly carry out her duties as a supervising prosecutor and had thereby committed a disciplinary violation. The harshest penalty for such violations, provided by domestic law, was dismissal (see paragraph 85 above). Accordingly, those proceedings were of a purely disciplinary nature and did not involve the determination of a criminal charge against the applicant (see Kamenos v. Cyprus, no. 147/07, §§ 50-53, 31 October 2017, and the cases cited therein). 99. Therefore, as the applicant was not “charged with a criminal offence” within the meaning of Article 6 § 2 of the Convention, it follows that the complaint under that provision is incompatible ratione materiae with the provisions of the Convention or the Protocols thereto, and must be declared inadmissible, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Exhaustion of domestic remedies (a) The parties ’ submissions 100. The Government submitted that the applicant had failed to exhaust available domestic remedies. In particular, she could have lodged a civil claim against the State for damage caused by allegedly unlawful acts of public officials, or brought a civil claim for defamation against specific individuals or media outlets, or lodged a complaint with the Office of the Inspector of Journalistic Ethics with regard to improper media reporting, but had not used any of those avenues. 101. The applicant submitted that she had chosen to defend her rights by complaining to the administrative courts, and that following their unfavourable decisions, lodging any civil claims had become futile. (b) The Court ’ s assessment 102. The Court reiterates that if there are 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, the use of another remedy which has essentially the same objective is not required (see O ’ Keeffe v. Ireland [GC], no. 35810/09, §§ 109 and 111, ECHR 2014 (extracts), and the cases cited therein). 103. In the present case, the applicant raised the complaint about the political and media interference before the administrative courts in the disciplinary proceedings (see paragraphs 52 and 61 above). The Government did not argue that this had not been an appropriate remedy in the applicant ’ s situation. In such circumstances, the Court considers that, having raised her complaints before the administrative courts, the applicant was not required to institute any additional proceedings (see Paulikas v. Lithuania, no. 57435/09, § 41, 24 January 2017, and the case-law cited therein). It therefore dismisses the Government ’ s objection as to the non-exhaustion of domestic remedies. Conclusion on admissibility 104. The Court notes that the applicant ’ s complaint under Article 6 § 1 of the Convention 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 105. The applicant submitted that the disciplinary proceedings against her had not been fair. She contended that the Prosecutor General and the administrative courts had not based the decision to demote her on her professional performance but that they had been influenced by public opinion, statements of high-level politicians and public officials, and the heightened media attention. In particular, the applicant referred to several public statements made by the President in which the latter had emphasised the need to impose harsh penalties on the officers who had been involved in the pre-trial investigation of the alleged sexual abuse, irrespective of their role and actual impact on the investigation (see paragraphs 41 and 44 above). The applicant also referred to the findings of the Parliamentary Committee on Legal Affairs, which had specifically indicated that she and the KCDPO had failed to properly carry out the pre-trial investigation (see paragraphs 31 and 32 above). 106. The applicant submitted that, as the Prosecutor General and judges were appointed and dismissed by the President with the approval of the Seimas, they must have felt obligated to follow the opinion publicly expressed by the President and the Committee and to impose harsh punishments on the prosecutors, including herself. 107. Lastly, she argued that the courts which had examined her complaint against her demotion had reached arbitrary and unfounded conclusions, which had also demonstrated their bias, and they had failed to take into account her positive character references and lack of previous disciplinary penalties. She also pointed out that the courts which had examined the complaint brought by G.R. against her dismissal had found that penalty to be disproportionately harsh (see paragraphs 72 above). (b) The Government 108. The Government submitted that the heightened attention of the public and the media with regard to the pre-trial investigation into D.K. ’ s complaints had been justified by its extremely sensitive subject matter: allegations of sexual abuse of a minor with the possible involvement of her mother, as well as the suspected involvement of public officials in the alleged criminal activity (see paragraphs 7 and 14 above). The nature and seriousness of the allegations, the inability of the authorities to promptly solve the case, and the ensuing murders (see paragraph 14 above) had triggered a large-scale scandal, raising serious questions about the ability of the domestic law enforcement authorities to properly react to similar crimes. Accordingly, the public had had a legitimate interest in being informed about the pre-trial investigation and the measures taken to address the shortcomings which had been revealed, and the media reporting had contributed to a public debate on matters of serious public concern. 109. The Government further submitted that none of the statements made by politicians and public officials had implied that the applicant was liable for any specific offence, and many of them had not referred to her at all. Furthermore, a number of statements invoked by the applicant had not been made until after the Prosecutor General ’ s Office had issued the findings of the disciplinary inquiry and thus could not have influenced that inquiry, which had found that the applicant had improperly carried out her duties and recommended her demotion. Moreover, no politicians or public officials had made any interventions in the disciplinary proceedings against the applicant. The Government contended that those officials had merely displayed their interest in the proper investigation of serious criminal cases. 110. The Government also submitted that media interest in certain cases was inevitable in a democratic society and courts could not be expected to operate in a vacuum. However, the applicant ’ s case had been decided by professional judges who, due to their professional training and experience, had been able to disregard any external influence. There had not been any indications of bias on the part of any of the judges who had examined the applicant ’ s case, and her concerns with regard to impartiality had been adequately addressed during the proceedings (see paragraphs 49, 63 and 64 above). 111. With regard to the parliamentary inquiry, the Government submitted that the Seimas, being the representative of the nation, needed to have the right to obtain information about various processes taking place in society in order to be able to exercise parliamentary control, including over prosecutors. However, there were adequate safeguards against any potential political interference with judicial processes (see paragraphs 89 and 90 above). Furthermore, unlike the disciplinary proceedings, the parliamentary inquiry had primarily sought to assess whether there was a need for legislative amendments in order to improve the conduct of pre-trial investigations, and not to make any findings as to liability of specific individuals (see paragraph 28 above). The Government submitted that the recommendations adopted by the Committee had been general and formulated in an abstract way, and it had not made recommendations with regard to any particular individuals (see paragraph 35 above). The Committee ’ s findings had not been binding on judicial authorities nor had they had a higher probative value than other evidence, and thus the independence and impartiality of the judges who had subsequently examined the applicant ’ s case had not been affected by them. 112. Lastly, the Government submitted that the administrative courts had thoroughly examined the applicant ’ s complaints against the disciplinary penalty and adopted well-founded decisions. They had taken into account the applicant ’ s role as the supervising prosecutor, her duties in performing that role, and the actions she had taken in the course of the investigation (see paragraphs 57 - 59 and 66 above). There were no indications that the courts had operated with a preconceived notion of the applicant ’ s guilt or that they had been unduly influenced by external factors; in fact, some of the findings of the commission of inquiry had been annulled in the court proceedings (see paragraph 56 above). The Court ’ s assessment (a) Scope of the case 113. In the present case, the disciplinary penalty was imposed on the applicant by the Prosecutor General, following an inquiry carried out by the Prosecutor General ’ s Office (see paragraphs 23 - 26 above). The applicant then challenged that penalty before the administrative courts, which examined her complaint at two levels of jurisdiction. 114. In her submissions before the Court, the applicant raised complaints with regard, inter alia, to the fairness of the decision taken by the Prosecutor General (see paragraphs 105 and 106 above). In this connection, the Court reiterates its settled case-law according to which, even where an administrative body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1”, that is, if any structural or procedural shortcomings identified in the proceedings before an administrative authority are remedied in the course of the subsequent review by a judicial body enjoying full jurisdiction (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 132, 6 November 2018 and the cases cited therein). 115. It was not disputed that the administrative courts which examined the applicant ’ s complaint against the disciplinary penalty were judicial bodies within the meaning of Article 6 § 1 of the Convention and that they had full jurisdiction over the matter. In such circumstances, the Court considers that it is not necessary to examine whether the proceedings conducted by the Prosecutor General ’ s Office complied with Article 6 § 1. It will limit its examination to the issue of fairness of the proceedings before the administrative courts. (b) Approach to be taken in the present case 116. The applicant complained that the fairness of the proceedings before the administrative courts had been affected by the findings of the parliamentary inquiry, the prejudicial statements made by politicians and public officials in the media, and the heightened media attention to the case. 117. The Court has previously acknowledged, in cases concerning the fairness of civil proceedings, that public statements made by high-ranking politicians might, in view of their content and the manner in which they were made, be incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 80, 25 July 2002, and Kinský v. the Czech Republic, no. 42856/06, § 94, 9 February 2012). It also held that what was at stake was not actual proof of influence or pressure on judges but the importance of the appearance of impartiality (see, mutatis mutandis, Kinský, cited above, § 98). 118. Accordingly, the Court considers that the applicant ’ s complaints should be examined from the perspective of the independence and impartiality of the courts which examined the case against her. 119. To date, when examining cases concerning the impact of statements made by public officials on the independence and impartiality of courts in civil proceedings, the Court found a violation of Article 6 § 1 of the Convention where the State authorities acting at the highest level had intervened in the civil proceedings on a number of occasions (see Sovtransavto Holding, cited above, § 80), as well as where several politicians had made strong negative statements regarding decisions in the type of cases brought by the applicant, including the applicant ’ s own cases, and about the judges deciding them, had unequivocally expressed the opinion that the courts ’ decisions upholding the applicant ’ s claims had been wrong and undesirable, and those statements had been directly aimed at the judges (see Kinský, cited above, §§ 91-93). The Court considers that the reasoning of the aforementioned judgments is directly relevant to the present case and should be duly taken into account when assessing the statements made by public officials complained of by the applicant. 120. The Court has also held in previous cases, albeit in the context criminal proceedings, that in certain situations a virulent media campaign can adversely affect the fairness of court proceedings and engage the State ’ s responsibility, with regard to, inter alia, the impartiality of courts under Article 6 § 1 (see Paulikas, cited above, § 57, and the cases cited therein). 121. In this connection, the Court reiterates that the requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases. However, the Court considers it necessary, when examining proceedings that fall within the civil-law aspect of Article 6, to draw inspiration from its approach to criminal-law matters (see Jokela v. Finland, no. 28856/95, § 68, ECHR 2002 ‑ IV; Carmel Saliba v. Malta, no. 24221/13, § 67, 29 November 2016; and Hodžić v. Croatia, no. 28932/14, § 67, 4 April 2019). 122. With the above considerations in mind, the Court emphasises, in particular, that a fair hearing can still be held after intensive adverse publicity. In a democracy, high-profile cases will inevitably attract comment by the media; however, that cannot mean that any media comment whatsoever will inevitably prejudice a defendant ’ s right to a fair hearing. In such cases, the Court will examine whether there are sufficient safeguards to ensure that the proceedings as a whole are fair. It will require cogent evidence that concerns about the impartiality of judges are objectively justified before any breach of Article 6 § 1 can be found (see Paulikas, cited above, § 58, and the cases cited therein). 123. The Court will address separately the three aspects of the applicant ’ s complaint (firstly, the findings of the Parliamentary Committee on Legal Affairs, secondly, various public statements made by high-ranking politicians, and thirdly, an alleged media campaign). It will also examine whether the administrative courts in their decisions adequately addressed her concerns with regard to the fairness of the proceedings. (i) As to the parliamentary inquiry 124. In accordance with Lithuanian law, the Seimas has the right to carry out parliamentary inquiries, either by entrusting them to one of the existing parliamentary committees or by creating an ad hoc commission of inquiry; when conducting such inquiries, both those bodies follow the same rules (see paragraphs 87 - 89 above). The Court takes note of the findings of the Constitutional Court of Lithuania and the Venice Commission, both of which recognised the right of Parliament to obtain information necessary for it to fulfil its lawful duties and the importance of parliamentary oversight in a democratic society (see paragraphs 90 and 91 above). The applicant did not argue that the very fact of the Seimas opening a parliamentary inquiry had, in and of itself, infringed the fairness of the proceedings in her case, and the Court has no grounds to find otherwise. 125. The applicant ’ s complaint concerned some of the findings made by the Parliamentary Committee – namely, that the KCDPO had “obviously procrastinated” in the pre-trial investigation and that she had been one of the officers responsible for the inaction (see paragraphs 31 and 32 above). 126. In this connection, the Court firstly observes that the purpose of the parliamentary inquiry was not to establish the liability of the applicant or any other individual officers, but to make an overall assessment of how the pre-trial investigation into D.K. ’ s complaints had been carried out, and whether general measures were necessary in order to improve the conduct of pre-trial investigations (see paragraph 28 above). Accordingly, the purpose of the parliamentary inquiry was not the same as that of either the criminal proceedings concerning D.K. ’ s complaints or the disciplinary proceedings against the applicant (see, mutatis mutandis, Rywin v. Poland, nos. 6091/06 and 2 others, § 226, 18 February 2016; see also the position of the Venice Commission on the purposes of parliamentary inquiries in paragraph 91 above). The Court also notes that the Constitutional Court has held that parliamentary inquiries could not interfere with the constitutional powers of courts, or undermine the independence of judges and courts, or administer justice themselves (see paragraph 90 above). 127. Turning to the specific statements complained of by the applicant, the Court observes that the Committee held several times, both in the descriptive part of its report and in its conclusions, that the KCDPO had “obviously procrastinated” in the pre-trial investigation, that it had failed to ensure that the essential investigative measures were taken, and had thereby acted incompetently (see paragraphs 32 and 35 above). While these statements unequivocally expressed the Committee ’ s view as to whether the KCDPO had acted properly, the Court emphasises that they did not engage the individual liability of any specific officers of the KCDPO. Similarly, the Seimas in its resolution endorsing the Committee ’ s findings did not make any mention of the applicant (see paragraph 36 above). The Court therefore considers that those statements were of a general nature and unable to affect the fairness of the disciplinary proceedings concerning the applicant ’ s individual liability (see, mutatis mutandis, Paulikas, cited above, § 52, and the cases cited therein). 128. As for the other statement complained of by the applicant, the Court notes that it indeed referred specifically to her – namely, that “the commission [of the Prosecutor General ’ s Office] which had conducted the disciplinary inquiry found that the persons responsible for the said inaction were the prosecutor of the KCDPO who had initially supervised the pre-trial investigation and had later taken over its conduct, and the Deputy Chief Prosecutor of the KCDPO” (see paragraph 31 above). 129. In this connection, the Court reiterates that any statement must be assessed in the context of the particular circumstances in which it was made (ibid., § 49). In the present case, the Committee did not carry out a separate investigation but based its findings on the documents provided to it by other authorities, including the Prosecutor General ’ s Office (see paragraph 29 above). At the time when the Committee adopted its report, the Prosecutor General ’ s Office had already concluded its disciplinary proceedings, in which it had identified various shortcomings in the work of the police and prosecutors – including the KCDPO and the applicant (see paragraphs 24 and 25 above). 130. In the Court ’ s view, the Committee ’ s report made it clear that the aforementioned finding had been reached by the Prosecutor General ’ s Office and not by the Committee itself. The Committee did not express any assessment of its own as to the accuracy of the Prosecutor General ’ s finding – it neither endorsed nor criticised it, and it did not make any additional observations with regard to the applicant ’ s possible role in the pre-trial investigation (see, for a similar situation, Rywin, cited above, § 217). Furthermore, the conclusions and recommendations adopted by the Committee did not contain any statements implying that the applicant was individually liable (see paragraph 35 above). 131. In such circumstances, the Court considers that the impugned statements made by the Committee in its report, when read in their context and in the light of the report as a whole, cannot be seen as implying that the applicant was individually liable for any shortcomings in the work of the KCDPO, and thus they did not give cause to doubt the independence and impartiality of the administrative courts in her case (contrast the cases cited in paragraph 119 above). (ii) As to the public statements of high-ranking politicians 132. The applicant also complained that the fairness of the disciplinary proceedings against her had been affected by the many public statements made by high-level State officials, who had insisted on the accountability and harsh punishment of prosecutors involved in the criminal proceedings concerning D.K. ’ s complaints. 133. The Court notes that the impugned statements were made by the President, the Chair of the Parliamentary Committee on Legal Affairs and some Members of Parliament in a context that was independent of the disciplinary proceedings themselves, that is, by way of public statements or interviews in the national press (see paragraphs 39 - 45 above and contrast the cases cited in paragraph 119 above). The Court acknowledges that the circumstances of the case – allegations of sexual abuse against a minor, two murders, and the apparent inability of the law enforcement authorities to conduct criminal proceedings promptly and diligently – created a legitimate public interest in being informed about, inter alia, the authorities ’ actions when investigating those allegations, the problems identified in their response, and the measures taken to address those problems. The Court is also of the view that those same circumstances justified the wish of high-level State officials to express their reaction to the shortcomings in the work of the law enforcement authorities and to keep the public informed about the individual and general measures taken to address those shortcomings (see the Government ’ s observations to that effect in paragraph 108 above). However, the Court reiterates that those circumstances in and of themselves could not justify each and every use of words by the officials in their statements to the press (see, mutatis mutandis, Paulikas, cited above, § 50, and the case-law cited therein). 134. The Court will first look at the statements which were made before the Prosecutor General ’ s Office concluded its disciplinary proceedings and decided to give the applicant a disciplinary penalty (see paragraphs 24 - 26 above). The President issued several public statements criticising the pre-trial investigation as protracted and calling for the identification and personal accountability of all officers who had acted negligently and who had failed to perform their duties diligently (see paragraphs 41 and 42 above). Furthermore, the Chair of the Parliamentary Committee on Legal Affairs stated that the pre-trial investigation had been carried out “rather dismissively and slowly” and that he had seen “displays of procrastination and negligence” in the actions of investigating officers (see paragraphs 39 and 40 above). In addition, a Member of Parliament implied that the deliberate inaction of the authorities might have driven D.K. to commit two murders (see paragraph 39 above). The Court observes that none of those statements referred to the applicant or implied that she had been responsible for any of the alleged inadequacies in the criminal proceedings (see Natsvlishvili and Togonidze v. Georgia, no. 9043/05, § 104, ECHR 2014 (extracts)). It is unable to accept that such statements of a general nature could have affected the fairness of the proceedings in which the applicant ’ s individual liability was determined (see Paulikas, cited above, § 52, and the cases cited therein and contrast the cases cited in paragraph 119 above). 135. Soon after the Prosecutor General ’ s Office concluded its disciplinary inquiry and recommended demoting the applicant and giving several other prosecutors disciplinary penalties ranging from a warning to dismissal (see paragraphs 24 and 25 above), the President gave a statement to a news website in which she admitted that she had expected the “Kaunas prosecutors” to receive harsher penalties (see paragraph 44 above). In the Court ’ s view, this statement was sufficiently specific and referred to an identifiable group of prosecutors which included the applicant. The applicant contended that the President ’ s insistence on harsh penalties had affected the fairness of the proceedings before the administrative courts. 136. The Court does not wish to speculate as to what effect the aforementioned statement may have had on the course of the proceedings in issue (see Kinský, cited above, § 94, and the case-law cited therein). However, it cannot be overlooked that the administrative courts which examined the applicant ’ s complaint against the demotion did not give her a harsher penalty than the one chosen by the Prosecutor General (see paragraphs 55 and 65 above). Furthermore, the courts justified the appropriateness of the demotion by referring to the specific duties of a supervising prosecutor and listing the concrete actions which the applicant had failed to take (see paragraphs 59 and 67 above). In such circumstances, the Court does not consider that the President ’ s statement with regard to the penalties to be given to the “Kaunas prosecutors” gave cause to doubt the independence and impartiality of the courts in the proceedings concerning the applicant ’ s individual liability (see, mutatis mutandis, Dimitrov and Others v. Bulgaria, no. 77938/11, § 163, 1 July 2014). (iii) As to the alleged media campaign 137. The Court acknowledges that, in certain situations, a virulent media campaign can adversely affect the fairness of court proceedings and engage the State ’ s responsibility (see paragraph 120 above). At the same time, the Court notes that press coverage of current events is an exercise of freedom of expression, guaranteed by Article 10 of the Convention. If there is a virulent press campaign surrounding the proceedings, what is decisive is not the subjective apprehensions of the affected individual concerning the absence of prejudice required of the courts, however understandable, but whether, in the particular circumstances of the case, his or her fears can be held to be objectively justified (see, mutatis mutandis, Paulikas, cited above, § 57, and the cases cited therein). 138. In the present case, there was extensive media coverage of the criminal proceedings concerning the alleged case of sexual abuse and of the subsequent disciplinary proceedings against various prosecutors, including the applicant. The Court has already accepted that the interest in the case was justified by the seriousness and nature of the criminal complaints brought by D.K. and the apparent inability of the authorities to adequately address those complaints (see paragraph 133 above). Therefore, although various State officials discussed the case in the media, it cannot be said that the coverage was prompted by the authorities, and nor did the applicant allege otherwise (ibid., § 60, and the cases cited therein). 139. The Court is unable to accept that the language used in the media reports with regard to the applicant while the court proceedings against her were ongoing was such as to create the perception of her responsibility for any specific offences (contrast Paulikas, cited above, § 61). Furthermore, the case against the applicant was decided by professional judges who were less likely than a jury to be influenced by the press campaign on account of their professional training and experience, which allows them to disregard improper external influence (ibid., § 62, and the cases cited therein). In addition, domestic courts at two levels of jurisdiction issued well-reasoned decisions and they upheld some of the applicant ’ s complaints (see paragraphs 55 - 60 and 65 ‑ 67 above). Accordingly, the Court finds no cogent evidence to suggest that the judges who assessed the arguments put forward by the applicant were influenced by any of the publications in the press (see the principles cited in paragraph 122 above). (iv) As to the reasoning of the administrative courts 140. The Court reiterates that the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention includes, in particular, the right of the parties to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is, duly considered by the court. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence presented by the parties, without prejudice to its assessment of whether they are relevant (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Paliutis v. Lithuania, no. 34085/09, § 39, 24 November 2015). 141. However, while Article 6 § 1 obliges the courts to give reasons for their judgments, it cannot be understood as requiring a detailed answer to every argument put forward by the parties. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing between the Contracting States with regard to statutory provisions, customary rules, judicial opinion and the presentation and drafting of judgments. That is why the question as to whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A, and Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 90, 28 June 2007). 142. In the present case, it does not escape the Court ’ s attention that neither of the administrative courts which examined the applicant ’ s complaint addressed her argument, raised before both the first-instance court and the appellate court, that the fairness of the proceedings had been prejudiced by public statements of politicians and by media reporting (see paragraphs 52, 60, 61 and 68 above; contrast Arrigo and Vella v. Malta ( dec. ), no. 6569/04, 10 May 2005, and Paulikas, cited above, § 25). 143. At the same time, it observes that the courts answered the applicant ’ s main arguments, namely that she had acted in accordance with the relevant legal instruments and that the penalty given to her had been disproportionate (see paragraphs 47, 56 - 59, 66 and 67 above and compare Buzescu v. Romania, no. 61302/00, § 67, 24 May 2005). In view of the rather general way in which the applicant formulated her complaint concerning the fairness of the proceedings (see paragraphs 52 and 61 above), as well as the detailed reasons given by the courts to justify the decision to give her a disciplinary penalty (see paragraph 136 above), the Court is prepared to accept that their silence on this issue can reasonably be construed as an implied rejection (see Ruiz Torija, cited above, § 30, and Yanakiev v. Bulgaria, no. 40476/98, § 71, 10 August 2006). 144. Furthermore, the Court has found no grounds to believe that the independence and impartiality of the administrative courts were compromised by public statements of State officials and politicians (see paragraphs 127, 131, 134, 136 and 139 above). Nor is there anything in the case file that would enable it to doubt the overall fairness of the proceedings before the administrative courts. Taking all these circumstances into account, the Court considers that the courts ’ omission to explicitly address the applicant ’ s argument concerning the alleged political and media interference did not render the proceedings, taken as a whole, unfair. (c) Conclusion 145. In the light of all the aforementioned circumstances, the Court concludes that there has been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 6 § 1 of the Convention in respect of the applicant. It found in particular no grounds to believe that the independence and impartiality of the administrative courts had been compromised by the public statements of State officials and politicians or by media reporting on the case. Nor, furthermore, had there been anything in the case file to make the Court doubt the overall fairness of the proceedings in the Lithuanian courts. |
1,075 | Freedom of religion (Article 9 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Basic Law 49. Article 140 of the Basic Law provides that Articles 136-39 and 141 of the Weimar Constitution of 11 August 1919 form an integral part of the Basic Law. Article 137 reads as follows: Article 137 “(1) There shall be no State Church. (2) The freedom to form religious societies shall be guaranteed. ... (3) Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities. ... (5) Religious societies shall remain entities under public law in so far as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and size of membership provide guarantees of long-term existence ... (6) Religious societies that are entities under public law shall be entitled to levy taxes on the basis of the civil taxation rolls in accordance with the law of the Land. ... (8) Such further regulation as may be required for the implementation of the present provisions shall be a matter for the legislature of the Land .” Article 140 “The provisions of Articles 136, 137, 138, 139 and 141 of the German Constitution of 11 August 1919 shall be an integral part of this Basic Law.” B. Relevant Provisions of the Tax Codes 50. Article 36 of the Income Tax Code ( Einkommensteuergesetz) provides that the obligation to pay income tax arises after the expiry of the assessment period and after taking any advance payments into account. 51. Article 218 § 1 of the Fiscal Code ( Abgabenordnung ) provides that the tax bill constitutes the legal basis to realise claims arising from the tax regime. According to paragraph 2 the authorities decide over disputes arising from paragraph § 1 by way of a settlement notice ( Abrechnungsbescheid ). 52. Section 41 of the Tax Court Act ( Finanzgerichtsordnung ) provides for the possibility to lodge a declaratory action. It is recognised by German legal practise that under this provision also a preventive declaratory action can be lodged. C. Provisions on levying the general church tax and the special church fee within the German Länder 53. Acts on the Collection of Church Taxes in the Länder of Baden ‑ Württemberg, Bavaria and Thuringia provide details about church taxes for those Länder. They state that churches in those Länder which are authorised to levy taxes are entitled to levy the church tax or a special church fee. 54. Under Article 19 § 4 of the Act on the Collection of Church Taxes of the Land of Baden-Württemberg ( Kirchensteuergesetz Baden-Würtemberg ) as in force at the relevant time, the church tax was levied on top of the tax on income. The provision stated that if only one spouse belonged to a church entitled to levy taxes, that church imposed the tax in accordance with the tax assessment relating to that person. If the spouses were taxable together, the church tax of the spouse liable to pay tax was calculated proportionally as a supplement to income tax. 55. Under Article 5 § 5 of the Act on the Collection of Church Taxes of the Land of Baden -Württemberg a church authorised to levy taxes levied the special church fee in cases where a member was married, taxable together with his or her spouse and had no taxable income. According to further provisions of the law ( Kirchensteuerbeschlüsse ), the special church fee was calculated on the basis of the liable person ’ s living expenses instead of their income. Those expenses were based on the joint income of the liable person and their spouse. D. Relevant case-law 56. On 14 December 1965 the Federal Constitutional Court delivered a leading judgment concerning the right of churches to levy church taxes (file no. 1 BvL 31/62, 1 BvL 32/62). It held that a person who was not a member of a church authorised to levy church taxes was not liable to pay church tax on account of his or her spouse ’ s membership of a church. 57. On the same day the Federal Constitutional Court delivered a further judgment on the issue of church taxes (file no. 1 BvR 606/60). It held that if only one spouse belonged to a church entitled to levy taxes and that person had no income in terms of the regulations of the Income Tax Code (“ ein eigenes Einkommen im Sinne des Einkommensteuergesetzes ”), the church was not allowed to take the other spouse ’ s income into account as a basis for calculating the church tax (Halbteilungsgrundsatz) because taxes were levied on the basis of an individual ’ s personal income. The spouse who was not a member of a church could not be regarded as a person liable to pay tax or be assumed to be liable to pay for the other spouse ’ s tax. At the same time, it held that in such cases the person may be liable to pay a special church fee, calculated on the basis of the liable person ’ s living expenses instead of their income. If those expenses were difficult to calculate, the calculation could be based on the spouses ’ joint income. 58. That case - law has been applied consistently by the domestic tax courts, including the Federal Tax Court (see no. I R 76/05, 19 October 2005 and I B 109/12, 8 October 2013), and has been confirmed by the Federal Constitutional Court on 19 August 2002 (see no. 2 BvR 443/01). THE LAW I. JOINDER OF THE APPLICATIONS 59. Given their similar factual and legal backgrounds, the Court decides that the four applications should be joined, in accordance with Rule 42 § 1 of the Rules of Court. II. APPLICATION NO. 10138/11 (THE FIRST APPLICANT) A. Scope of the application 60. Having regard to the submissions made by the first applicant in the course of the proceedings before this Court, the Court considers it necessary to clarify at the outset that the scope of the present case is delimited by the complaints raised in the first applicant ’ s original applications to the Court. In this regard, the Court notes that in his application and submissions the first applicant made factual statements only with regard to the tax bill for the year 2008. The Court concludes therefore that the applicant, represented by a lawyer, cannot be considered as having validly raised complaints about the tax bills concerning the years after 2008. B. Alleged violation of Article 9 of the Convention 61. The first applicant complained that the system of collecting church taxes in Germany, as it had been applied to him, had infringed his right to freedom of religion, as provided in Article 9 of the Convention, which reads as follows: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 62. The Government contested that argument. 1. Admissibility 63. The Government submitted that the first applicant could not claim to be a direct victim of a violation of Article 9 of the Convention as he had neither personally been charged the special church fee nor been liable to pay it. It had only been his wife who had been liable to pay the special church fee as she had been the recipient of the respective tax bill. 64. The first applicant maintained that he had been a victim of a violation of Article 9 of the Convention as his wife ’ s special church fee had been offset against his tax reimbursement claim. 65. In order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. The individual concerned must be able to show that he or she was “directly affected” by the measure complained of (see Lambert and Others v. France [GC], no. 46043/14, § 89, ECHR 2015 (extracts) ). This criterion is not to be applied in a rigid, mechanical and inflexible way (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003-IX). The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000 ‑ XI), even though the Court should have regard to the fact that an applicant had been a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009). 66. Turning to the case at hand, the Court notes that the special church fee levied on his wife was offset against the first applicant ’ s tax reimbursement claim (see paragraph 2 1 above). The Court considers that, irrespective of the question of whether or not the first applicant was liable for the special church fee pursuant to domestic law, he was directly affected by the impugned way of collecting his wife ’ s special church fee. In view of the foregoing, and given the need to apply the criteria governing victim status in a flexible manner, the Court accepts that the first applicant, even if the part of the tax bill related to the special church fee did not concern him directly, can be considered a victim of the facts complained of within the meaning of Article 34 of the Convention. It therefore rejects the Government ’ s objection that the first applicant lacked victim status. 67. In so far as the Government submitted that the applicant could have applied for a settlement notice according to Article 218 of the Fiscal Code (see paragraph 51 above) or that he had had the possibility to lodge a preventive declaratory action ( vorbeugende Feststellungsklage, see paragraph 52 above ), the Court notes that the Government have not invoked in substance the rule to exhaust domestic remedies and, accordingly, sees no reason to address this point as an objection of inadmissibility. 68. The Court notes that no other ground for declaring inadmissible the first applicant ’ s complaint under Article 9 of the Convention has been established. It must therefore be declared admissible. 2. Merits ( a) The first applicant ’ s submissions 69. The first applicant submitted that he had been compelled to pay his wife ’ s special church fee as it had been offset against his tax reimbursement claim. Furthermore, the tax bill had not contained any information on his right to raise an objection against the offsetting or the possibility to apply for a settlement notice. He did thus not have the possibility to apply for a settlement notice. Furthermore, by opting for a joint tax assessment he had not consented to the offsetting as the decision to file a joint tax assessment had been motivated solely by financial considerations and had had nothing to do with a negative confession of religious beliefs. ( b) The Government ’ s submissions 70. The Government submitted that the special church fee had only been levied because the first applicant and his wife had opted for a joint tax assessment. If they had opted for a separate income tax assessment, the church fee would not have been levied. In that case, his income tax would have increased by EUR 8,400. Accordingly, the spouses ’ choice for joint tax assessment had led to a decrease in the first applicant ’ s tax burden. 71. Furthermore, as far as the offsetting of the first applicant ’ s wife ’ s special church fee against his tax reimbursement claim was concerned, the first applicant could have prevented this offsetting by lodging a preventive declaratory action. 72. The Government further argued that, once the offsetting had taken place, the first applicant had had the possibility to apply for a settlement notice under Article 218 of the Fiscal Code. He had thus had the possibility to be repaid the money that had been taken as a result of the offsetting of his wife ’ s special church fee. ( c) Third parties ’ comments (i) The Churches ’ common submissions 73. The intervening churches (compare paragraph 5 above) submitted that the manner and legal framework for raising funds for churches formed part of the relationship between the State and churches and was thus subject to the wide margin of appreciation which was given to States in the building of relations with churches. The levying of church taxes formed part of the right to the self-administration of churches in the Länder. Only church members were obliged to pay a contribution for their religious activities. 74. They further submitted a guideline ( Dienstanweisung ) for tax authorities without, however, specifying which authority issued it, when it was issued and whether it applied to the first applicant at the relevant time. They alleged that on the basis of this guideline the automatic offsetting of the first applicant ’ s tax reimbursement claim against his wife ’ s special church fee could have been stopped upon his opposition. (ii) The Giordano Bruno Foundation ’ s submissions 75. The Giordano Bruno Foundation submitted that the assessment of the special church fee on the basis of living expenses rather than on a member ’ s personal income, entailed, de facto, that the spouse who was not a member of a church had to pay the fee, thus forcing that person to contribute to church finances. ( d) The Court ’ s assessment 76. Having regard to the first applicant ’ s complaint, that he had been compelled to pay the special church fee levied on his wife without being a member of that church, the Court considers it appropriate to examine this case from the angle of the negative aspect of freedom of religion and conscience, namely the right of an individual not to be compelled to be involved in religious activities against his will (see, mutatis mutandis, Bruno v. Sweden (dec.), no. 32196/96, 28 August 2001 ). (i ) whether there was an interference 77. The Court reiterates that as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, the freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; and Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A). 78. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one ’ s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Furthermore, the Court has had occasion to point out that Article 9 enshrines negative rights, for example the freedom not to hold religious beliefs and not to practise a religion (see, to this effect, Sinan Işık v. Turkey, no. 21924/05, § 38, 2 February 2010; and Alexandridis v. Greece, no. 19516/06, § 31, 21 February 2008 ). 79. This general right protects everyone from being compelled to be involved in religious activities against his will. The payment of a specific tax to a church to fund its religious activities may, in certain circumstances, be seen as such involvement (see Lundberg v. Sweden (dec.), 36846/97, 28 August 2001). 80. The Court notes that the tax bill at issue applied to both the first applicant and his wife (see paragraph 21 above). At the same time, one column of the table showing the result of the authority ’ s tax assessment was headed “Protestant Church tax, wife”. Furthermore, the explanatory part of the tax bill stated that only the first applicant ’ s wife was liable for the church tax (see paragraph 22 above). The Court, as a consequence, shares the Government ’ s point of view that it was the wife on whom the special church fee was being levied and not the first applicant. 81. Nevertheless, the Court has accepted, as noted above, that Article 9 is also a precious asset for non-believers or for those not belonging to any institutionalised religious group like the first applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of that provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to contribute to a religious organisation of which they are not a member. In the present case, the special church fee which was levied on the first applicant ’ s wife was, in fact, subtracted directly from the first applicant ’ s tax reimbursement claim by way of an offset due to the spouses ’ decision to have their income tax assessed jointly. 82. The Court observes that in the material submitted by the parties there is nothing to suggest that the first applicant had first to consent to the offsetting of his wife ’ s special church fee against a potential tax reimbursement claim, but that it followed as an automatic consequence of the spouses ’ decision for a joint tax assessment. The Court concludes that German legislation brought about a situation where the first applicant was subjected to his wife ’ s financial obligations towards her church without himself being a member of it. 83. It follows that there has been an interference with the negative aspect of the applicant ’ s rights under Article 9 of the Convention. (ii) whether the interference was justified ( α ) General Principles 84. In order to determine whether or not an interference entails a violation of Article 9 of the Convention, the Court must ascertain whether it satisfied the requirements of Article 9 § 2, that is to say, whether it was “prescribed by law”, pursued a legitimate aim under that provision and was “necessary in a democratic society” ( İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 105, ECHR 2016). 85. In particular, an instance of 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, among many other authorities, İzzettin Doğan and Others, cited above, § 105 ). 86. As a matter of case-law, in cases concerning the right to freedom of religion the Court has consistently left the Contracting States a certain margin of appreciation 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. The Court ’ s task is to determine whether the measures taken at national level were justified in principle and proportionate (see Manoussakis and Others v. Greece, 29 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, § 44). 87. In delimiting the extent of the margin of appreciation, particularly as regards the building of the fragile relations that exist between the State and religions, the Court reiterates that there is no common European standard governing the financing of churches or religions, such questions being closely related to the history and traditions of each country (see Wasmuth v. Germany, no. 12884/03, § 63, 1 7 February 2011; Spampinato v. Italy (dec.), no. 23123/04, 29 March 2007; and Manoussakis and Others, cited above, § 44 ). The margin of appreciation left to Contracting States in this regard is thus a wide one (see Schilder v. The Netherlands (dec.), no. 2158/12, 16 October 2012; Miroļubovs and Others v. Latvia, no. 798/05, § 80, 15 September 2009; Alujer Fernández and Caballero García v. Spain (dec.), no. 53072/99, ECHR 2001 ‑ VI; and Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000 ‑ VII). ( β ) Application to the present case 88. The Court observes that there is no dispute between the parties that there was a legal basis for the impugned offsetting of the first applicant ’ s tax reimbursement claim against his wife ’ s special church fee. 89. Furthermore, the interference pursued a legitimate aim within the meaning of Article 9 § 2 of the Convention, namely to guarantee the rights of churches and religious communities which, under German law, have the right to levy church taxes (compare Wasmuth, cited above, § 55). The Court therefore has to decide whether the impugned interference was necessary in a democratic society. 90. In this regard the Court notes that there are two aspects to the first applicant ’ s complaint. Firstly, that he was compelled to pay his wife ’ s church fee as it had been offset against his tax reimbursement claim. Secondly, that the tax bill did not contain any information on his rights with regard to that offsetting. 91. In determining whether, in the light of the above principles, the interference with the first applicant ’ s rights under Article 9 of the Convention is justified in principle and proportionate, the Court notes, at the outset, the first applicant ’ s submission that the decision to file a joint tax assessment was motivated solely by financial considerations (see paragraph 6 9 above). The Court considers important that, as a consequence of German tax legislation, the couple ’ s choice of a joint tax assessment not only had consequences for the calculation of the couple ’ s overall tax, but also for the administration of the tax claims against the first applicant and his wife, which were put together in one document. 92. The Court further notes that at the time the first applicant and his wife decided for a joint tax assessment, they did not know whether the first applicant would have a tax reimbursement claim that would involve offsetting his wife ’ s special church fee, or whether the tax authorities would have additional tax claims that would prevent such an offsetting. That was because offsetting is part of the procedure for calculating taxes and the tax authorities only calculate the final income tax after spouses have submitted their tax declaration and made their choice of a joint or separate tax assessment. Under those circumstances, the Court doubts whether a preventive declaratory action can be regarded as a counterbalancing factor in the circumstances of the case, all the more so as the Government have not given any details as to the preconditions and effects of such an action. 93. As far as concerns the Government ’ s argument that the decision in favour of a joint income tax assessment led to a net reduction in the first applicant ’ s tax burden, even though his wife ’ s special church fee was deducted from his tax reimbursement claim, the Court holds that that reduction does not remove the link between the spouses ’ choice on financial grounds of a joint tax declaration and the possibility for the tax authorities to offset the special church fee claim against a tax reimbursement claim. 94. Nevertheless, that link has to been seen in the context of the domestic tax system as a whole. The Court considers it important that offsetting does not imply an irreversible financial loss (compare paragraph 16 above). It notes the Government ’ s argument in that regard that, to undo the offsetting, the first applicant could have applied for a settlement notice under Article 218 of the Fiscal Code. Accordingly, the first applicant ’ s obligation to pay his wife ’ s special church fee would have been, in any event, only temporary in case the applicant had applied for it. 95. When balancing, on the one hand, the first applicant ’ s right to negative freedom of religion and, on the other hand, the public interest in the efficient collection of taxes, including church tax (compare Wasmuth, cited above, § 60), the Court has to take into account the burden put on the first applicant in the offsetting procedure. In particular, it is aware of the fact that the necessity to apply for a settlement notice obliged the first applicant to take more far-reaching action than in the case of Wasmuth, where the applicant had only once to give information of limited scope ( ibid. ). 96. On the other hand, regard must be had to the fact that, unlike in Wasmuth, it was in the first place the decision of the first applicant and his spouse to make a joint tax declaration which led to the two separate tax claims being handled together in administrative terms. That decision required the State to engage in a more complicated tax assessment and put into motion the rather technical process of offsetting credits against debits. It can therefore be regarded as an administrative mechanism to set the final amount of tax the spouses had to pay after they decided to be taxed together. This administrative mechanism could be undone by setting in practise a further mechanism, namely that of the settlement notice. 97. Furthermore, there is nothing in the material submitted by the parties which indicates that applying for a settlement notice would have caused the first applicant any financial burden, taken up much of his time or entailed any further consequences. That holds true even if an easier solution seems feasible, for instance by allowing spouses to indicate whether or not they agreed to offsetting reimbursement claims against special church fees as early as in the tax declaration form. 98. Lastly, as regards the first applicant ’ s argument that the tax bill contained no information on available remedies for the offsetting (see paragraph 6 9 above) and thus did not inform him of his rights under that domestic provision, the Court reiterates its general case-law that the Convention does not guarantee, as such, the right to be informed of available domestic remedies (see Avotiņš v. Latvia [GC], no. 17502/07, § 123, ECHR 2016; and Société Guerin Automobiles v. the 15 States of the European Union (dec.), no. 51717/99, 4 July 2000). 99. Having regard to the competing interests at stake and in view of the relatively minor interference with the first applicant ’ s rights under Article 9 of the Convention, the Court considers that the possibility to apply for a settlement notice under Article 218 of the Fiscal Code can be regarded as a counterbalancing factor in the present case. 100. The foregoing considerations are sufficient to enable the Court to conclude that, taking into account the wide margin of appreciation left to Contracting States with regard to the definition of the relations between churches and the State (see paragraph 8 7 above), the domestic authorities have adduced relevant and sufficient reasons to justify the tax authorities ’ offsetting the claims of the Protestant Church of the German Land of Baden-Württemberg on his wife against the first applicant ’ s reimbursement claims, without, in the first place, obtaining the first applicant ’ s consent to such a calculation. 101. There has accordingly been no violation of Article 9 of the Convention. C. Alleged violation of Article 14 of the Convention taken in conjunction with Article 9 of the Convention 102. The first applicant further complained that the special church fee as levied by the Protestant Church of the Land of Baden-Württemberg, his wife ’ s church, discriminated against him when compared with married couples where one spouse did not belong to a church and the other one belonged to a religious community without the right to levy church taxes. He alleged that it was only in his case that a special church fee was levied in accordance with the church member ’ s living expenses. He relied on Article 9 of the Convention taken in conjunction with Article 14. The latter provision reads, so far as relevant here, as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... religion ... ” 103. The Government contested that argument. 104. The Court reiterates that according to its settled case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Fabris v. France [GC], no. 16574/08, § 47, ECHR 2013 (extracts) ). 105. In the present case the Court notes that the first applicant – other than his complaint under Article 9 of the Convention (see paragraph 6 9 above) – did not complain that the offsetting of his tax reimbursement claim against the claims of his wife ’ s church discriminated against him, but only that the fact that his income was taken into account by the church when calculating his wife ’ s church fee was discriminatory. The Court, having regard to the submissions made by the first applicant and to the fact that the church fee had been levied on his wife and not on him, considers that he has not shown that this specific complaint falls within the ambit of Article 9 of the Convention. Thus, Article 14 of the Convention is not applicable. 106. In the light of the foregoing, the Court finds that this complaint under Article 14 of the Convention taken in conjunction with Article 9 is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATIONS NOS. 16687/11 (SECOND APPLICANT) AND 28919/11 (FIFTH APPLICANT) A. Alleged violation of Article 9 of the Convention, taken alone and in conjunction with Article 14 of the Convention 107. The second and fifth applicants complained that the special church fee levied by the Protestant Church of the Land of Bavaria infringed their right to freedom of religion, as provided in Article 9 of the Convention, taken alone and read in conjunction with Article 14. 108. The Government contested that argument. 1. The Government ’ s submissions 109. Relying on the Commission ’ s decisions in the case of Gottesmann v. Switzerland (no. 10616/83, 4 December 1984) and E. and G.R. v. Austria (no. 9781/82, 14 May 1984), the Government stated that the second and fifth applicants ’ obligation to pay the special church fee did not constitute an interference with their right to freedom of religion, as both had been members of a church and the obligation to pay fees for that membership had not interfered with its members ’ freedom of religion. The Government further stressed that the applicants, had they not wanted to pay the special church fee, could have chosen to leave their church (reference Konttinen v. Finland, no. 24949/94, Commission decision of 3 December 1996 ). 2. The applicants ’ submissions 110. The second and the fifth applicants argued that the calculation of the special church fee on the basis of a church member ’ s living expenses rather than on the basis of his or her personal income had infringed their right to freedom of religion as the special church fee could exceed their personal income, which would render them dependent on their spouses in the exercise of their freedom of religion. The fifth applicant was furthermore of the opinion that the special church fee discriminated against women, as it was mainly women in Germany who had no income and on whom the special church fee was levied. 3. The third parties 111. The intervening churches (see paragraph 5 above) submitted that the aim of the special church fee was to include every church member without an income, according to his or her financial capacity in the funding of the churches ’ activity. In the case that this church member was married, the financial capacity stemmed in case of joint tax assessment not only from the income of the church member, but from the income of the spouse as well. 112. According to the Giordano Bruno foundation the connecting point for the calculation of the special church fee, namely the joint taxable income, infringed the individual ’ s right to freedom of religion as the fee was not calculated with reference to the individual church member ’ s income. 4. The Court ’ s assessment 113. Having regard to its general principles (see paragraphs 7 7 - 7 9 above) the Court reiterates its case-law that a church tax does not, as such, interfere with the right to freedom of religion, as long as State legislation provides for the possibility to leave the church (compare E. and G.R. v. Austria, cited above; and Gottesmann, cited above). 114. The Court notes that the second and fifth applicants were members of the Protestant Church of the Land of Bavaria and had thus not been compelled to be involved in religious activities against their will, without being a member of such a community ( contrast Bruno, cited above). Furthermore, the two applicants did not dispute the fact that they had a general obligation to pay a special church fee ( contrast E. and G.R. v. Austria, cited above). They only complained about the way the church calculated that fee, namely by basing it on their living expenses, and in turn their spouses ’ income as well as their own (see paragraph 1 10 above). 115. The Court observes that the second and fifth applicants ’ obligation to pay a special church fee and the way it was calculated did not arise directly under the State ’ s legislation, which only authorised churches to levy church taxes, but derived from a decision taken independently by the Protestant Church of the Land of Bavaria to levy a special church fee on its members and the manner in which it was to be calculated. As such, it thus cannot be attributed to the respondent State. The fact that churches are subject to State control on this issue does not change the nature of the levying of contributions as an autonomous church activity (compare E. and G.R. v. Austria, cited above). 116. Having regard to the fact that the State ’ s role in this field is limited to the exercise of a power of control and that the second and fifth applicants neither called into question their obligation to pay a church fee nor their right to leave their church, the Court is of the opinion that the German authorities have included sufficient safeguards to ensure freedom of religion. It concludes therefore that there is no appearance of any interference with the applicants ’ rights under Article 9 of the Convention. 117. As regards the fifth applicant ’ s further complaint under Article 14 of the Convention taken in conjunction with Article 9, the Court, having regard to the submissions made by the applicant, considers that she has not shown that she was treated differently than other individuals in a similar situation because of her sex. 118. The second and fifth applicants ’ complaints are thus manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B. Further complaints 119. The second and fifth applicants complained further under Article 8 and Article 12 of the Convention, each taken alone and in conjunction with Article 14, that the levying of a special church fee on spouses in a marriage where only one of them belonged to a church entitled to levy taxes discriminated against them when compared with spouses who belonged to different churches entitled to levy taxes and unmarried couples. 120. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that the second and fifth applicants ’ complaints do not disclose any appearance of a violation of Article 8 and Article 12 of the Convention, each taken alone and in conjunction with Article 14. 121. The Court accordingly finds that their complaints are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION NO. 25359/11 (THE THIRD AND FOURTH APPLICANTS ) 122. The third and fourth applicants complained that the domestic provisions concerning the levying of church taxes – unlike the cases of the second and fifth applicants, which concerned the levying of the special church fee ( with regard to the differences compare paragraph 12 above) – as they had been applied to them had breached their right to freedom of religion, as provided in Article 9 of the Convention, taken alone and read in conjunction with Article 14. 123. The Government contested that argument. 1. The Government ’ s submissions 124. With regard to the third applicant, the Government contested his victim status as he had stated that he had been willing to pay church tax and had only complained that his wife ’ s income had been taken into account when the tax had been calculated, even though she was not a member of a church. 125. With regard to the fourth applicant, the Government argued that the fact that her income had been taken into consideration when the church had calculated her husband ’ s church tax had stemmed, firstly, from the fact that the third applicant ’ s Church had linked the rate of his church tax to his income tax liability and, secondly, from the couple ’ s decision to have a joint tax assessment, and thus could not be attributed to the State. Furthermore, the fourth applicant had failed to show that she had contributed financially to her husband ’ s church as a result of that calculation method. On the contrary, as a direct result of the spouses ’ decision to opt for a joint tax assessment, the third applicant had benefited from the progressive effect of the German tax system, which had led to his church tax being lower than it would have been if he had made a separate income tax declaration. For example, the third applicant ’ s church tax in 2005 had been assessed at EUR 629.55, while under a separate income tax declaration it would have been EUR 825. 75. 2. The third and fourth applicants ’ submissions 126. The third and fourth applicants argued that their decision to make a joint income tax declaration had been based solely on financial considerations, namely the positive consequences of progressive taxation. However, it had also involuntarily directly affected the way the third applicant ’ s church tax had been calculated, as his church, as a direct consequence of that decision, had taken the fourth applicant ’ s income into account. As a result, the fourth applicant had had to contribute to financing her husband ’ s church, which had constituted an interference with her negative rights under Article 9 of the Convention. 127. Furthermore, the third applicant had declared that he was willing to pay his church tax, but had objected that it had been too high as it had been calculated in relation to his share of their joint income tax rather than in relation to his share of their total income. 128. Lastly, the applicants as spouses in a marriage where only one spouse belonged to a church entitled to levy taxes (see paragraph 1 2 above) stated that they had been discriminated against when compared with spouses who both belonged to a church levying church taxes in case of a joint tax declaration, as in both cases both incomes were taken into account to calculate the amount of the church tax even though in the case of the third and fourth applicants only one spouse belonged to a church. 3. The Court ’ s assessment 129. The Court notes, at the outset, that the parties agreed that the applicants ’ decision to file a joint income tax declaration directly determined how the church calculated the third applicant ’ s church tax as it was levied in accordance with his tax assessment basis and thus took both incomes into account. The Court further notes the Government ’ s submission (see paragraph 1 25 above), which was uncontested by the third and fourth applicants, that as a direct result of this decision, the third applicant benefited from Germany ’ s progressive tax system and that his church charged him a lower church tax than if they had made separate income tax declarations. 130. Against this background the Court considers that both applicants failed to substantiate that their decision to have a joint tax assessment had increased the third applicant ’ s church tax, nor was that evident in the material submitted by the parties. On the contrary, according to the Government ’ s submissions, the direct result of the spouses ’ decision was that the third applicant ’ s church tax was lower than under separate income tax declarations. In contrast to the Government ’ s similar argument in the case of the first applicant, where this decision enabled his wife ’ s church to collect its special church fee at the expense of the first applicant ’ s tax reimbursement claim (see paragraph 9 3 above), in the present case the church tax was levied on and collected from the person liable to pay it, namely the third applicant, who is a member of a church. 131. Moreover, having regard to the wide margin of appreciation left to Contracting States in this area (see Alujer Fernández, cited above; and Cha ’ are Shalom Ve Tsedek, cited above, § 84), the Court is of the opinion that the domestic courts ’ decisions on the calculation method used by the Protestant Church of the Land of Thuringia, as it did not cause any negative financial consequences for the applicants, cannot be said to have involved the fourth applicant in religious activities against her will, even though the domestic courts accepted that the church ’ s calculation method was a consequence of the decision to file a joint income tax declaration and thus took into consideration the fourth applicant ’ s income when assessing the third applicant ’ s church tax. 132. As regards the third applicant ’ s further objection about the church ’ s method of calculation of his church tax, the Court reiterates that in view of its general principles as set out above (see paragraph 1 1 3 above), the church tax does not, as such, interfere with the right to freedom of religion, as long as State legislation provides for the possibility to leave the church. The calculation of the third applicant ’ s church tax did not arise directly from State legislation, but derived from a decision taken independently by the Protestant Church of the Land of Thuringia. As such, that decision cannot be attributed to the respondent State (see paragraph 1 15 above). 133. As regards the third and fourth applicants ’ further complaint that they were being discriminated against when compared with spouses who both belong to a church levying church tax, the Court considers that, while in the latter case both spouses belonged to a church levying church tax, in the case of the third and fourth applicants only one spouse had to pay a church tax. Thus the third and fourth applicants cannot be said to be in the same situation as couples who are both members of a church levying taxes. 134. Therefore, the Court concludes that their complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. | The Court found that most of the complaints under Article 9 (freedom of religion) of the Convention were inadmissible. In particular, this was because in these cases the taxes/fees had been levied not by the State, but by the applicants’ churches – which the applicants were free to leave under German law. As such, in most of the cases the levying and calculation of the taxes/fees had been an autonomous church activity, which could not be attributed to the German State. However, in one case the State had been involved in levying a special church fee on an applicant who was not a member of the relevant church. This was because the fee which had been levied on the applicant’s wife had been subtracted directly from the applicant’s tax reimbursement claim by way of an off-set – therefore subjecting the applicant to his wife’s financial obligations towards her church. However, this off-set had arisen because the couple themselves had chosen to file a joint tax assessment, and it appeared that the applicant could have cancelled it by lodging a settlement notice. In these circumstances, the off-set had been a proportionate way for the State to try to rationalise the couple’s tax liabilities, which had involved no violation of the Convention. |
887 | Public or political figures | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Press Complaints Commission 29. The Press Complaints Commission (“PCC”) is an independent body set up to examine complaints about the editorial content of newspapers and magazines, and their websites, in the United Kingdom. If a complaint is upheld, a public ruling will be issued by the PCC and the newspaper or magazine concerned is obliged to publish the critical ruling in full and with due prominence. 30. On 18 November 2008 the PCC upheld a complaint by Mr P. Burrell that the News of the World had published an article about him which was inaccurate, in breach of clause 1 of the Editors ’ Code of Practice (see further paragraph 31 below). The newspaper had failed to approach him for comments prior to publication. In its adjudication, the PCC noted: “ The [PCC] has previously said that failure to contact the subjects of articles before publication – while not obligatory – may constitute a lack of care under Clause 1 in some circumstances. It has never said that people have no right ever to comment on a story, or to be offered a right of reply, if they have misled people in another context. The [PCC] was also aware of the newspaper ’ s concerns about an undeserved injunction being granted. However, it did not consider that this meant that the requirements of the Code did not apply. Given the nature of the story, and how the newspaper wished to present it, the inclusion of the complainant ’ s comments was necessary to avoid breaching the Code. ... It has never been an absolute requirement for newspapers to contact those who are about to feature in articles. This would be impractical for a number of reasons: often there will be no dispute about the facts, or the information will be innocuous; the volume of people mentioned in straightforward stories would make it impossible; and legitimate investigations might on some occasions be compromised by such a rule. However, in this case the newspaper made the wrong decision and the complaint was upheld .” B. Codes of Practice 1. The Editors ’ Code of Practice 31. The PCC is responsible for ratifying and enforcing the Editors ’ Code of Practice (“the Editors ’ Code”). The Editors ’ Code is regularly reviewed and amended as required. Clause 1 of the Editors ’ Code provides, inter alia, that the press must take care not to publish inaccurate, misleading or distorted information, including pictures. 32. Clause 3 of the Editors ’ Code deals with privacy. At the relevant time, it provided as follows: “3. *Privacy i ) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual ’ s private life without consent. ii) It is unacceptable to photograph individuals in a private place without their consent. Note - Private places are public or private property where there is a reasonable expectation of privacy.” 33. Clause 10 of the Editors ’ Code sets out provisions on clandestine recordings: “10 *Clandestine devices and subterfuge i ) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent. ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.” 34. At the relevant time, the “public interest” was explained in the Editors ’ Code as follows: “ There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest. 1. The public interest includes, but is not confined to: i ) Detecting or exposing crime or serious impropriety. ii) Protecting public health and safety. iii) Preventing the public from being misled by an action or statement of an individual or organisation. 2. There is a public interest in freedom of expression itself. 3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served. 4. The PCC will consider the extent to which material is already in the public domain, or will become so. ...” 35. Paragraph 3 was amended in October 2009 to provide: “ Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest. ” 36. The Editors ’ Codebook accompanies the Editors ’ Code and is intended to provide guidance as to compliance with the Code ’ s provisions. It underwent major revision in January 2011, providing updates on prior notification and “ public interest ”. As regards prior notification, it now explains: “ There is wide agreement that prior notification of the subjects of stories ahead of publication, while often desirable, could not – and should not – be obligatory. It would be impractical, often unnecessary, impossible to achieve, and could jeopardise legitimate investigations. Yet, at the same time, a failure to include relevant sides of the story can lead to inaccuracy and breach the Code. The PCC has set out guidance on how to square this circle: 1. If there is no doubt about the story ’ s truth, it is unlikely that a failure to approach those involved for comment prior to publication will lead to a breach of Clause 1 of the Code [on accuracy]; 2. Where information has come from a source (especially an anonymous one), it may be prudent to seek the ‘ other side of the story ’ before the article appears; ... ” 37. As to the “public interest” test, the Codebook notes: “ In judging publications ’ claims that otherwise prohibited information or methods were justifiable in the public interest, both the Code and the PCC set high thresholds. The burden is on the editor to demonstrate fully how the public interest was served. ” 38. It provides details of previous rulings of the PCC on the question of the “public interest” and identifies key questions as: “ Was it reasonable to believe that publication or journalistic activity would have served the public interest? The PCC would require a full explanation showing that the grounds were genuine and sound in the circumstances. If clandestine methods, subterfuge, harassment or payments to criminals or witnesses are involved, could the information have been obtained by other means? Is the information in the public domain, or likely to become so? If children are involved, is the public interest in publication exceptional? ” 2. The Ofcom Broadcasting Code 39. Broadcasters are subject to the Ofcom Broadcasting Code (“the Ofcom Code”). Section 7 of the Ofcom Code deals with fairness and provides, inter alia : “7.9 Before broadcasting a factual programme, including programmes examining past events, broadcasters should take reasonable care to satisfy themselves that: ... 40. Principle 8 of the Ofcom Code addresses the need to avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes. C. Remedies for publication of private information 41. Under English law, a number of remedies are available in cases of misuse of private information. An injunction can be sought to restrain publication of the private material. Damages are also available to compensate for the injury caused by any intrusive publication, including aggravated damages where additional features of the intrusion or the defendant ’ s post-publication conduct makes the original injury worse. An alternative to damages is an account of the profits made by the defendant. The court can also order delivery-up of the offending material. 42. Further protection is offered by the Data Protection Act 1998, which makes provision for the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. It sets out in a schedule eight data protection principles which must be observed by data controllers in the United Kingdom. These principles include the principles that personal data shall be processed fairly and lawfully; that personal data shall be obtained only for one or more specified and lawful purposes; that personal data shall be adequate, relevant and not excessive in relation to the purpose for which they are processed; that personal data shall be accurate and up to date; and that personal data shall be processed in accordance with the rights of data subjects under the Act. Further requirements are stipulated in respect of “sensitive personal data”, which includes information as to a person ’ s sexual life. 43. However, section 32(1) of the Act provides a “public interest” exemption from the data protection principles where information is processed for journalism purposes : “ Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if— (a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material, (b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and (c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes. ” 44. Section 3 defines “the special purposes” as including the “purposes of journalism”. Section 32(2) provides that the exemption relates to the data protection principles, except the seventh data protection principle which sets out the need for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Section 32(3) provides that compliance with any code of practice is relevant to the assessment of whether there was a reasonable belief that publication would be in the public interest. 45. Section 13 of the Act entitles a data subject to apply for compensation where there has been a contravention of the requirements of the Act and section 14 allows him to apply for rectification, erasure or destruction of personal data. D. Interim injunctions 46. The position as regards interim injunctions under English law was set out in the case of American Cyanamid Co. v. Ethicon Ltd ([1975] Appeal Cases 396). In particular, a claimant seeking an interim injunction was required to show that he had a “seriously arguable case” to be tried. Once this had been shown, it was for the courts to decide where the balance of convenience lay between the case for granting the injunction and that of leaving the applicant to his remedy of damages. If there were doubts as to the adequacy of a remedy in damages, the preservation of the status quo often prevailed, with the result that an interim injunction would be granted. 47. The position in cases engaging the right to freedom of expression was subsequently amended with the entry into force of the Human Rights Act 1998. Section 12 of the Act provides: “ (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. (2) If the person against whom the application for relief is made ( ‘ the respondent ’ ) is neither present nor represented, no such relief is to be granted unless the court is satisfied— (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified. (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to— (a) the extent to which— ( i ) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code. ” 48. The effect of the Human Rights Act, in particular section 12(3), was considered by the House of Lords in Cream Holdings Limited and others v. Banerjee and others [2004] UKHL 44. Lord Nicholls of Birkenhead observed that: “ 15. When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a ‘ serious question to be tried ’ or a ‘ real prospect ’ of success at the trial.” 49. He concluded that: “ 22. Section 12(3) makes the likelihood of success at the trial an essential element in the court ’ s consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant ’ s prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success ‘ sufficiently favourable ’, the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ( ‘ more likely than not ’ ) succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.” 50. Subsequently, in Douglas & Ors v Hello! Ltd & Ors ([2005] EWCA Civ 595), the Court of Appeal noted: “ 258. Of course, as recently emphasised by the House of Lords in Cream Holdings Limited v Banerjee [2004] 3 WLR 918, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998. ” E. The House of Commons Culture, Media and Sport Committee 51. On 9 February 2010 the House of Commons Culture, Media and Sport Committee (“the Select Committee”) published a report on Press standards, privacy and libel (2 nd Report of Session 2009-10, HC 362-I). The report was prepared following receipt of written submissions and the hearing of oral evidence from a number of stakeholders, including the applicant and the editor of the News of the World. A chapter of the report was dedicated to examining privacy and breach of confidence. As regards the evidence received on the need for a rule of pre-notification, the report noted: “82. In his own case, Mr Mosley stated that he would certainly have sought an injunction if he had had advance notification of the News of the World ’ s intention to publish. Mr Myler [the editor of the News of the World ] told us that he and his colleagues at the newspaper were conscious of this: ‘ we knew that probably Mr Mosley would get an injunction, and I felt very strongly that this was a story that actually should not be stopped because of an injunction ’ .” 52. According to the evidence received by the Select Committee, journalists contacted the subjects of their articles prior to publication in the great majority of cases. However, there was some evidence before the Select Committee that editors sometimes took a calculated risk not to contact a subject because they knew or suspected that an injunction would be imposed in respect of an intended publication.The report noted : “91. Clearly pre-notification, in the form of giving opportunity to comment, is the norm across the industry. Nevertheless we were surprised to learn that the PCC does not provide any guidance on pre-notification. Giving subjects of articles the opportunity to comment is often crucial to fair and balanced reporting, and there needs to be explicit provision in the PCC Code itself.” 53. The Select Committee recommended that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception, and that guidance for journalists and editors on pre-notifying should be included in the Editors ’ Codebook. 54. As to the need for a legally binding pre-notification requirement, the Select Committee concluded that: “93. ... a legal or unconditional requirement to pre-notify would be ineffective, due to what we accept is the need for a ‘ public interest ’ exception. Instead we believe that it would be appropriate to encourage editors and journalists to notify in advance the subject of a critical story or report by permitting courts to take account of any failure to notify when assessing damages in any subsequent proceedings for breach of Article 8. We therefore recommend that the Ministry of Justice should amend the Civil Procedure Rules to make failure to pre-notify an aggravating factor in assessing damages in a breach of Article 8. We further suggest that amendment to the Rules should stipulate that no entitlement to aggravated damages arises in cases where there is a public interest in the release of that private information.” III. RELEVANT INTERNATIONAL MATERIALS A. Relevant Council of Europe texts 1. The Parliamentary Assembly of the Council of Europe 55. On 23 January 1970, the Parliamentary Assembly of the Council of Europe adopted Resolution 428, containing a declaration on mass communication media and human rights. As regards the duty of the press to act responsibly, the declaration indicated that it would be desirable to put in place : “ (a) professional training for journalists under the responsibility of editors and journalists; (b) a professional code of ethics for journalists; this should cover inter alia such matters as accurate and well balanced reporting, rectification of inaccurate information, clear distinction between reported information and comments, avoidance of calumny, respect for privacy, respect for the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights; (c) press councils empowered to investigate and even to censure instances of unprofessional conduct with a view to the exercising of self-control by the press itself. ” 56. The declaration also noted that there was an area in which the exercise of the right of freedom of expression might conflict with the right to privacy protected by Article 8, and that the exercise of the former right should not be allowed to destroy the existence of the latter. It observed that the right to privacy consisted essentially in the right to live one ’ s own life with a minimum of interference and concerned private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection against misuse of private communications and protection from disclosure of information given or received by the individual confidentially. The declaration also stated that the right to privacy afforded by Article 8 should not only protect an individual against interference by public authorities, but also against interference by private persons or institutions, including the mass media, and that national legislation should guarantee this protection 57. On 26 June 1998 the Parliamentary Assembly adopted a further resolution, Resolution 1165, on the right to privacy, focusing on public figures. The Resolution noted that personal privacy was often invaded, even in countries with specific legislation to protect it, as people ’ s private lives had become a highly lucrative commodity for certain sectors of the media. It continued: “ 8. It is often in the name of a one-sided interpretation of the right to freedom of expression, which is guaranteed in Article 10 of the European Convention on Human Rights, that the media invade people ’ s privacy, claiming that their readers are entitled to know everything about public figures. 9. Certain facts relating to the private lives of public figures, particularly politicians, may indeed be of interest to citizens, and it may therefore be legitimate for readers, who are also voters, to be informed of those facts. 10. It is therefore necessary to find a way of balancing the exercise of two fundamental rights, both of which are guaranteed in the European Convention on Human Rights: the right to respect for one ’ s private life and the right to freedom of expression. 58. The resolution reaffirmed the importance of every person ’ s right to privacy and of the right to freedom of expression as fundamental to a democratic society. It noted that these rights were neither absolute nor in any hierarchical order, since they were of equal value. Further, the right to privacy afforded by Article 8 required protection against interference by private persons or institutions, including the mass media. The resolution also set out specific guidelines on the necessary content of national legislation: “ i. the possibility of taking an action under civil law should be guaranteed, to enable a victim to claim possible damages for invasion of privacy; THE LAW I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION 65. The applicant complained that the United Kingdom had violated its positive obligations under Article 8 of the Convention, taken alone and taken together with Article 13, by failing to impose a legal duty on the News of the World to notify him in advance in order to allow him the opportunity to seek an interim injunction and thus prevent publication of material which violated his right to respect for his private life. The Government contested that argument 66. In the Court ’ s view, the complaint under Article 13 as to the absence of an effective domestic remedy is a reformulation of the applicant ’ s complaint under Article 8 of the Convention that the respondent State did not ensure respect for the applicant ’ s private life, and is subsidiary to it (see Armonienė v. Lithuania, no. 36919/02, § 23, 25 November 2008; and Biriuk v. Lithuania, no. 23373/03, § 23, 25 November 2008 ). The Court accordingly considers it appropriate to analyse the applicant ’ s complaints solely under Article 8 of the Convention, which reads in so far as relevant 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. Victim status a. The parties ’ submissions 67. The Government considered that the applicant was no longer a victim of any violation of the Convention. They noted that he had successfully pursued domestic proceedings and was awarded the sum of GBP 60,000 in damages and recovered GBP 420,000 in costs (see paragraph 28 above). They concluded that he had obtained a remedy before the domestic courts and considered that remedy to constitute adequate and proportionate reparation for the harm he had suffered. They emphasised that the damages awarded in his case were the highest to date in the United Kingdom for an invasion of privacy. The Government further noted that the applicant had recovered damages in other jurisdictions and that it seemed that he had outstanding proceedings in the United Kingdom and elsewhere in respect of the same or similar publications. These included proceedings in Germany, which settled for EUR 250,000, and civil and criminal proceedings in France and Italy regarding the publication which was the subject of the English proceedings. 68. The Government also emphasised that since commencing his legal action against the News of the World, the applicant had sought and obtained a high profile in the United Kingdom as a champion of privacy rights and, in that context, had submitted evidence to Parliament and had participated in a number of press and media interviews. They questioned whether the effect of the publication was as detrimental to the applicant as he claimed. 69. The applicant insisted that he remained a victim of a violation of the Convention notwithstanding the damages award in the domestic proceedings. He argued that damages were not an adequate remedy where private and embarrassing personal facts and intimate photographs were deliberately exposed to the public in print and on the internet. This information could never be expunged from the minds of the millions of people who had read or seen the material and privacy could not be restored to him by an award of damages. The only effective remedy in his case would have been an injunction, a remedy which he was denied by the failure of the newspaper to notify him in advance. Similarly, actions taken in other jurisdictions did not remove his victim status. Such actions were aimed at requiring media and internet websites to remove explicit or highly personal information repeated or taken from the original publication by the News of the World. Indeed, his efforts in this regard were evidence of how persistent and damaging the breach of his privacy had been. 70. Finally, the applicant argued that any implication that he had not suffered from the breach of his privacy was both absurd and offensive. He pointed to the intimate nature of the material disclosed and the humiliation occasioned by its public disclosure, as well as to the impact of the publication on his family. b. The Court ’ s assessment 71. The Court accepts that the publication of the articles, photographs and video images of the applicant participating in sexual acts had a significant impact on the applicant ’ s right to respect for his private life. The fact that, following the widespread dissemination of the material (see paragraph 11 above), the applicant has chosen to pursue what he perceives to be a necessary change in the law does not lessen the extent of any humiliation or injury suffered by him as a result of the original exposure of the material. 72. The Court notes the unusual nature of the applicant ’ s complaint. Having won his case at domestic level and obtained damages, his argument before this Court is directed at the prevailing situation in the United Kingdom in which there is no legal requirement to pre-notify the subject of an article which discloses material related to his private life. Whether or not Article 8 requires, as the applicant has contended, the United Kingdom to put in place a legally binding pre-notification requirement is a matter to be considered in the context of the merits of the case. However, it is clear that no sum of money awarded after disclosure of the impugned material could afford a remedy in respect of the specific complaint advanced by the applicant. 73. In light of the above, the Court finds that the applicant can claim to be a victim in light of the specific nature of his complaint under Article 8 of the Convention. 2. Exhaustion of domestic remedies a. The parties ’ submissions 74. The Government argued that in so far as the applicant sought to claim that the damages awarded in the domestic proceedings were not adequate, he had failed to exhaust domestic remedies as he did not appeal the judge ’ s ruling on exemplary damages. They further relied on the fact that the applicant had elected to pursue a remedy in damages, rather than an account of profits. Finally, they noted that the applicant had failed to bring any proceedings under the Data Protection Act 1998 (see paragraphs 42 - 45 above), which would have allowed him to complain about the unauthorised processing of his personal information and to seek rectification or destruction of his personal data. 75. The applicant reiterated that he was not seeking further damages from the newspaper but was making a complaint about the absence of a law which would have prevented publication of the article which violated his right to respect for private life. Accordingly, the additional remedies proposed by the Government were, in his submission, irrelevant to his complaint. b. The Court ’ s assessment 76. The Court reiterates the unusual nature of the applicant ’ s complaint in the present case (see paragraph 72 above). None of the remedies on which the Government rely could address his specific complaint regarding the absence of a law requiring pre-notification. They are therefore not to be considered remedies which the applicant was required to exhaust before lodging his complaint with this Court. 77. The Government ’ s objection is accordingly dismissed. 3. Conclusion 78. The Court has dismissed the Government ’ s objections as to the applicant ’ s victim status and exhaustion of domestic remedies. It notes 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. B. Merits 1. The parties ’ submissions a. The applicant 79. The applicant argued that a positive obligation could arise under Article 8 of the Convention even in the sphere of the relations of individuals between themselves. In the present case, he contended, the respondent State had an obligation to enable him to apply for an injunction by requiring that he be notified prior to publication of an article which interfered with his private life. The applicant emphasised that in his case details of the most intimate parts of his private life were published on the front page, and in several inside pages, of a newspaper with an estimated readership of approximately ten million people in the United Kingdom. Highly intrusive images made by means of secret recordings were also posted on the newspaper ’ s website and inevitably reproduced elsewhere on the internet. The applicant considered that the judgment of Eady J made it clear that had he had an opportunity to apply for an injunction, an injunction would have been granted (see paragraphs 17 - 18 above). 80. In support of his argument that the law should provide for an opportunity to seek an injunction, the applicant emphasised, first, that where a conflict arose between competing interests under Article 8 and Article 10, it was for the courts and not the newspapers to resolve it. He highlighted the dangers of allowing journalists to be the sole judges as to where the balance between the right to freedom of expression and the right to respect for private life lay, as, he claimed, the British press were largely hostile both to the need to protect private life and to the interpretation of that right by the judiciary. Further, he considered that as the law currently stood, editors were encouraged not to notify subjects as, once an article had been published, subjects often decided not to bring legal proceedings for fear of attracting further publicity in respect of the invariably embarrassing or damaging details about their private lives. Second, the applicant argued that where the resolution of the conflict between Articles 8 and 10 occurred only after publication, there was insufficient protection for private life because, once lost, privacy could not be regained. Referring to the judgment of Eady J (see paragraph 27 above), the applicant noted that in defamation cases, it was a complete defence to prove the truth of the published material and that, as a result, damage done to reputation could be removed by proving that the allegations were false. However, the same could not be said in relation to privacy, which was inherently perishable and therefore could not be restored to the victim of the interference. Further, he was of the view that section 12 of the Human Rights Act 1998 provided significant protection for newspapers ’ right to freedom of expression by setting a high threshold before an interim injunction would be granted (see paragraphs 47 - 50 above). He emphasised that pursuant to the Court ’ s jurisprudence on Article 10, there was a need for newspapers claiming protection to comply with the requirements of responsible journalism. In his view, these requirements included a pre-notification requirement. 81. The applicant accepted that the respondent State had a margin of appreciation but contended that it related solely to the scope or efficacy of any pre-notification requirement. His complaint was not that he had received some warning but not enough; rather, he had received no warning at all. He considered that the absence of a uniform approach in other Contracting Parties requiring pre-notification was not decisive. He pointed to the fact that in a number of States, consent played an important role in the context of privacy law and contended that where consent was either required for disclosure or relevant to an assessment of whether the disclosure was lawful, there was no need for a separate pre-notification requirement. He further relied on what he called the “unique nature of the tabloid press” in the United Kingdom, highlighting the unlawful actions of some tabloid reporters and the criticisms made by the tabloid press of developing laws on privacy. 82. While the applicant agreed that the precise mechanics and scope of any system of pre-notification was a matter for the discretion of the respondent State, he considered the difficulties which the Government claimed would arise, for example, in formulating a pre-notification obligation, to be illusory or at the very least exaggerated, given in particular that prior notification already occurred in the vast majority of cases (see paragraph 52 above). In his view, a pre-notification obligation in respect of an intended publication would arise, at the very least, where there were reasonable grounds to believe that the publication would infringe the right to respect for private life, having regard to all the circumstances of the case including any public interest defence. There was nothing unfamiliar about the legal concept of “reasonable belief”. He further pointed out that a form of pre-notification was already envisaged in the Ofcom Code, which imposed an obligation on broadcasters before broadcasting a factual programme to seek comments from anyone it would be unfair to exclude (see paragraph 39 above). 83. The applicant accepted that any system would require exceptions in certain circumstances to allow for legitimate situations where it would be either impractical or contrary to the public interest for the media to notify an individual in advance. Thus where all practicable steps had been taken to notify or where there were compelling reasons not to notify, no sanction for a failure to notify would arise. He disputed that conceptual difficulties would arise in devising any public interest exception to the general requirement, pointing to the provision in the Human Rights Act 1998 that a party seeking an injunction should notify the media in advance of the application and to the exception for “ compelling reasons ” to that general rule set out in the same Act (see paragraph 47 above). 84. As to sanctions, the applicant considered that criminal or regulatory sanctions were required to enforce the pre-notification requirement (citing K.U. v. Finland, no. 2872/02, 2 December 2008 ). He pointed out that criminal proceedings against newspapers and editors for alleged contempt of court, obscenity or breaches of the Official Secrets Acts were possible. b. The Government 85. While the Government accepted that Article 8 could give rise to positive obligations, they contended that a high threshold had to be crossed before Article 8 would be engaged in this way. They distinguished between three types of cases. First, where an applicant had suffered directly from State inaction, such as non-recognition of transsexuals, the case for a positive obligation was strong. Second, where positive action by the State was called for by an applicant to prevent interference by non-State bodies, such as in environmental and media cases, positive obligations were less readily invoked. Third, where an applicant alleged that positive action by individuals was called for, the extent of any positive obligation under Article 8 was at its weakest. The Government argued that relevant factors in determining the extent of the positive duty were the extent to which fundamental and essential aspects of private life were in issue; the prejudice suffered by the applicant; the breadth and clarity of the positive obligation sought to be imposed; and the extent of consensus among Council of Europe member States or internationally. With reference to these factors, they argued that they had no positive obligation to protect the applicant ’ s privacy by providing for a legally binding pre- notification requirement. 86. If there was a positive obligation in the circumstances of the case, the Government contended that there was a significant margin of appreciation available to them in deciding where in domestic law to strike the balance between the requirements of Article 8 and Article 10 and that the current position fell within that range. They argued that an inevitable consequence of a pre-notification requirement was that there would be an increase in the number of interim injunctions granted, which in themselves were a restriction on freedom of expression and for that reason should be approached with caution. 87. The Government pointed out that there was a consistent pattern among Council of Europe member States against a system of pre ‑ notification and disputed in this regard that the tabloid press in the United Kingdom was unique in Europe. As to the role of consent in certain other States, the Government noted that it was not clear whether consent was a strict requirement in the cases mentioned by the applicant, nor was it clear whether there were exceptions. In any case, they considered it questionable whether this approach differed from the approach in the United Kingdom, where consent would be a complete defence to any action for invasion of privacy and failure to pre-notify would be taken into consideration in fixing any damages award. Further, the Government emphasised that an insistence on compulsory pre- notification would be to depart from internationally accepted standards as established by the Council of Europe (see paragraphs 55 - 59 above). In this regard, they noted in particular that the legal position in the United Kingdom complied with the guidelines set out in Resolution 1165 (see paragraph 58 above). 88. The Government also referred to the important role of the PCC and the Editors ’ Code in the system for protection of privacy rights in the United Kingdom. In particular, they highlighted that the PCC had recently upheld a complaint where a newspaper had failed to seek the subject ’ s comments prior to publication (see paragraph 30 above). They also emphasised that the matter had recently been examined in the context of an inquiry by the House of Commons Culture, Media and Sport Committee (see paragraphs 51 - 54 above). After hearing evidence, the Select Committee had decided against recommending a legal requirement of pre-notification (see paragraph 54 above). 89. Finally, the Government considered that the fact that pre-notification was carried out as a matter of good practice in most cases did not mean that there were no insuperable difficulties in imposing a legal requirement to do so. In their view, the introduction of a pre-notification requirement would give rise to a number of practical and principled objections. Difficulties arose regarding the formulation of the scope of any obligation, including the identification of the categories of press and media to which the obligation would apply and the extent of the notification requirement and the circumstances in which it would be engaged, as well as the operation of any “public interest” exception. In this regard, they disputed the applicant ’ s claim that the Ofcom Code provided an example of the kind of pre-notification duty called for, considering the obligation set out in Rule 7.9 of that code to be significantly different. The question of sanctions for a failure to comply with a pre-notification requirement was also problematic. The Government considered it clear that the applicant contemplated criminal sanctions and expressed concern about how to define and enforce any criminal offence. They also warned that an inadequately framed law could give rise to breaches of Article 10. 90. In conclusion, the Government invited the Court to find that the framework of legal regulation in place in the United Kingdom concerning publications which might contravene the right to respect for private life was sufficient to comply with any positive obligations which arose. c. Third party submissions i. Guardian News & Media Ltd 91. The Guardian News & Media Ltd (“ the Guardian”) argued that if the applicant ’ s complaint were to be upheld by the Court, it would seriously and disproportionately fetter the right of the press to publish, and the public to receive, information and opinions in the public interest. A pre-notification requirement would thus have a serious and unjustified chilling effect upon the practical enjoyment of the right to freedom of expression. It would, in their view, also be inconsistent with the concept of responsible journalistic freedom which the Court had consistently emphasised. 92. The Guardian stressed that while the applicant had formulated the pre-notification duty by reference to the facts of his case, its repercussions would be felt far more widely. First, they argued, an alleged breach could involve not only the media but also public authorities, non-governmental organisations or even private individuals. Second, logic dictated that pre ‑ notification would be required not only in privacy cases but in all cases requiring a balancing exercise pursuant to Article 10 § 2. 93. Referring to the wide margin of appreciation in this area, the Guardian considered that the appropriate balance had been struck in the United Kingdom. They highlighted the absence of any European consensus that a pre-notification duty was required. Further, although some countries required that consent be obtained before information regarding private life was disseminated, at least where the public interest was not implicated, a similar number of countries had no such provision. The Guardian also referred to the Data Protection Act 1998 and its parent EC Directive, which did not provide for any pre-notification requirement (see paragraphs 42 - 45 and 64 above). They further referred to the recent inquiry by a House of Commons Select Committee, which in its subsequent report rejected the argument that there was a need for a pre-notification requirement in the United Kingdom (see paragraphs 51 - 54 above). 94. Finally, the Guardian contended that any pre-notification requirement would be unworkable in practice. They considered that it would not always be obvious when the pre-notification rule would be triggered, nor was it clear how the need for a “ public interest ” exception could be catered for. ii. The Media Lawyers ’ Association 95. The Media Lawyers ’ Association (“ the MLA”) contended that a pre-notification requirement was wrong in principle, would be unworkable in practice and would constitute a breach of Article 10 of the Convention. 96. The MLA emphasised the wide margin of appreciation in deciding what measures were required to satisfy any positive obligation in this field. They referred to the lack of any European consensus on the need for a pre-notification duty. They also pointed to the fact that a House of Commons Select Committee had recently rejected the suggestion that there should be a legal pre-notification requirement (see paragraph 54 above). The question whether there was a need to contact a subject prior to publication was, in their view, a matter to be addressed in the context of the ethics of journalism and the codes of practice governing the media. These codes had evolved over time and demonstrated that the media were well aware of the duty to respect each individual ’ s right to privacy. In particular, the MLA noted that the Editors ’ Code gave guidance as to what might be covered by “public interest” (see paragraphs 34 - 35 above). 97. The MLA contended that the duty for which the applicant argued was vague and uncertain in scope. They pointed out that a pre-publication duty would have wide ramifications, potentially applying not just to the media and journalists but to a far broader group. A number of practical questions arose, for example, as to who would have to be contacted by the media in respect of any intended publication, whether the duty would arise in respect of photographs taken in the street of unknown persons, whether it would apply to images or text previously published and whether it would extend to notification of close family members of the subject, who might also be affected by the publication of the material. The MLA further referred to the need for exceptions to any general duty, for example, where there was a good reason not to contact the subject or where there was a public interest in publication. 98. The MLA emphasised the importance of Article 10 and in particular the role of the press as “public watchdog”. They considered that the availability and operation of interim injunctions continued to be a matter of concern in this area and contended that prior restraints on publication constituted a serious interference with the right to freedom of expression. Accordingly, such restraints should only be granted where strictly necessary, and any order granted should be no wider than necessary. They emphasised that injunction proceedings in themselves inevitably led to delay and costs, even if no injunction was eventually granted, and any changes which would encourage the seeking of injunctions would therefore not be desirable. They argued that domestic law struck an appropriate balance between competing rights and interests. iii. The Media Legal Defence Initiative, Index on Censorship, The Media International Lawyers ’ Association, European Publishers ’ Council, The Mass Media Defence Centre, Romanian Helsinki Committee, The Bulgarian Access to Information Programme (AIP) Foundation, Global Witness and Media Law Resource Centre 99. In their joint written submissions, the interveners referred to the importance of the right to freedom of expression. There would, in their view, be significant consequences were a pre-notification requirement to be introduced. It would delay publication of important news, which was itself a perishable commodity, in a wide range of public interest situations wherever the public figure could claim that his psychological integrity was at stake from publication of the truth. The interveners disputed that any balance was required between rights arising under Articles 8 and 10, arguing that there was a presumption in favour of Article 10 and that reputation was a subsidiary right which had to be narrowly interpreted. 100. The interveners further argued that there was a wide margin of appreciation in this area. They emphasised the tradition in common law countries against prior restraints on publication, arguing that a pre ‑ notification requirement would go against the long-standing approach in this area. Further, they pointed out, there was no Europe-wide consensus as to a need for a pre-notification rule. It was also noteworthy that questions of privacy protection had been regularly debated in the United Kingdom in recent years and had been the subject of various reports, including the recent Select Committee report (see paragraph 51 - 54 above). In that report, the applicant ’ s case for a pre-notification requirement had been rejected. 101. The interveners also contended that privacy was inadequately defined to support a pre-notification requirement. However, they accepted that there might be an argument for a notice requirement relating to medical records and photographs taken without consent in private places, for example, but only if reputation were no part of Article 8 and private information were properly defined. In their view, as currently formulated, the requirement called for was so vague as to be unworkable. 102. The interveners considered that any general duty would have to be subject to exceptions, notably to an exception where there was a “ public interest ” in publication. This being the case, it was relevant that in the applicant ’ s case, the editor of the News of the World would have published the story without notification even if there had been a legally binding pre ‑ notification requirement because he genuinely believed that there was a Nazi element to the activities which would have justified publication in the public interest (see paragraph 24 above). 103. The interveners emphasised that even successfully defended injunction proceedings could cost a newspaper GBP 10,000; an unsuccessful newspaper could pay GBP 60,000. It was simply not viable for the media to contest every case where compulsory notification would be followed by a request for an injunction. This was the chilling effect of a pre ‑ notification requirement. 2. The Court ’ s assessment 104. The Court recalls that Eady J in the High Court upheld the applicant ’ s complaint against the News of the World (see paragraph 25 above). He found that there was no Nazi element to the applicant ’ s sexual activities. He further criticised the journalist and the editor for the casual and cavalier manner in which they had arrived at the conclusion that there was a Nazi theme. In the absence of any Nazi connotations, there was no public interest or justification in the publication of the articles or the images. Reflecting the grave nature of the violation of the applicant ’ s privacy in this case, Eady J awarded GBP 60,000 in damages. The newspaper did not appeal the judgment. In light of these facts the Court observes that the present case resulted in a flagrant and unjustified invasion of the applicant ’ s private life. 105. The Court further notes that as far as the balancing act in the circumstances of the applicant ’ s particular case was concerned, the domestic court firmly found in favour of his right to respect for private life and ordered the payment to the applicant of substantial monetary compensation. The assessment which the Court must undertake in the present proceedings relates not to the specific facts of the applicant ’ s case but to the general framework for balancing rights of privacy and freedom of expression in the domestic legal order. The Court must therefore have regard to the general principles governing the application of Article 8 and Article 10, before examining whether there has been a violation of Article 8 as a result of the absence of a legally binding pre-notification requirement in the United Kingdom. a. General principles i Article 8 106. It is clear that the words “ the right to respect for ... private ... life ” which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31 ). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 61-62, Reports of Judgments and Decisions 1996 ‑ IV ). 107. The Court emphasises the importance of a prudent approach to the State ’ s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect ( Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009 ). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States ’ margin of appreciation (see, inter alia, X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91; and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 ‑ III ). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59(c), Series A no. 216; and Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ XI ). 108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion ’ s requirements will vary considerably from case to case (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 52, Reports 1998 ‑ V ). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII; and Armonienė, cited above, § 38 ). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, § 48; A, B and C v. Ireland [GC], no. 25579/05, § 232, 16 December 2010; and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011 ). 109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 77, ECHR 2002 ‑ VI ). Thus, in cases concerning Article 8, where a particularly important facet of an individual ’ s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ IV; and A, B and C v. Ireland [GC], cited above, § 232 ). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45; and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX ). 110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation : where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997 ‑ II; and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ XIII ). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010 ‑ ... ). 111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, § 142 ), rights which merit, in principle, equal respect ( Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; compare and contrast Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30 ). ii. Article 10 112. The Court emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law ( see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009; MGN Limited, cited above, § 141; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Not only does the press have the task of imparting such information and ideas but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian, cited above, § 59; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010; and MGN Limited, cited above, § 141). 113. It is to be recalled that methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court to substitute its own views for those of the press as to what technique of reporting should be adopted ( see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). However, editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of ... the rights of others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism ( see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-X; Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 42, ECHR 2009 ‑ ...; and MGN Limited, cited above, § 141 ). 114. The Court also reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual ’ s private life (see Armonienė, cited above, § 39). In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person ’ s strictly private life ( Von Hannover, cited above, § 65; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and MGN Limited, cited above, § 143 ). Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v. France ( dec .), nos. 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, § 66; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 77, 9 November 2006; Hachette Filipacchi Associés ( ICI PARIS ), cited above, 40; and MGN Limited, cited above, § 143 ). While confirming the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, the Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it. 115. It is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31; and Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003 ‑ I ). Accordingly, although freedom of expression also extends to the publication of photographs, the Court recalls that this is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate “information” about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 47; and MGN Limited, cited above, § 143 ). Factors relevant to the assessment of where the balance between the competing interests lies include the additional contribution made by the publication of the photos to a debate of general interest as well as the content of the photographs (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002 ). 116. The Court recalls that the nature and severity of any sanction imposed on the press in respect of a publication are relevant to any assessment of the proportionality of an interference with the right to freedom of expression (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Lešník v. Slovakia, no. 35640/97, § 63, ECHR 2003-IVl and Karsai v. Hungary, no. 5380/07, § 36, 1 December 2009 ). Thus the Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35; and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004 ‑ XI ). 117. Finally, the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian, cited above, § 60 ). The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest. b. Application of the general principles to the facts of the case 118. As noted above (see paragraph 106 ), it is clear that a positive obligation arises under Article 8 in order to ensure the effective protection of the right to respect for private life. The question for consideration in the present case is whether the specific measure called for by the applicant, namely a legally binding pre-notification rule, is required in order to discharge that obligation. 119. The Court observes at the outset that this is not a case where there are no measures in place to ensure protection of Article 8 rights. A system of self-regulation of the press has been established in the United Kingdom, with guidance provided in the Editors ’ Code and Codebook and oversight of journalists ’ and editors ’ conduct by the PCC (see paragraphs 29 - 38 above). This system reflects the 1970 declaration, the 1998 resolution and the 2008 resolution of the Parliamentary Assembly of the Council of Europe (see paragraphs 55 and 58 - 59 above). While the PCC itself has no power to award damages, an individual may commence civil proceedings in respect of any alleged violation of the right to respect for private life which, if successful, can lead to a damages award in his favour. In the applicant ’ s case, for example, the newspaper was required to pay GBP 60,000 damages, approximately GBP 420,000 in respect of the applicant ’ s costs and an unspecified sum in respect of its own legal costs in defending the claim. The Court is of the view that such awards can reasonably be expected to have a salutary effect on journalistic practices. Further, if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the material. Again, the Court notes that the availability of civil proceedings and interim injunctions is fully in line with the provisions of the Parliamentary Assembly ’ s 1998 resolution (see paragraph 58 above). Further protection for individuals is provided by the Data Protection Act 1998, which sets out the right to have unlawfully collected or inaccurate data destroyed or rectified (see paragraphs 42 - 45 above). 120. The Court further observes that, in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information. Thus in Von Hannover, cited above, the Court ’ s analysis focused on whether the judgment of the domestic courts in civil proceedings brought following publication of private material struck a fair balance between the competing interests. In Armonienė, cited above, a complaint about the disclosure of the applicant ’ s husband ’ s HIV-positive status focused on the “derisory sum” of damages available in the subsequent civil proceedings for the serious violation of privacy. While the Court has on occasion required more than civil law damages in order to satisfy the positive obligation arising under Article 8, the nature of the Article 8 violation in the case was of particular importance. Thus in X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91, the Court insisted on the need for criminal law provisions to achieve deterrence in a case which involved forced sexual intercourse with a sixteen year old mentally handicapped girl. In K.U. v. Finland, no. 2872/02, § § 46-47, 2 December 2008, the availability of civil law damages from an Internet service provider was inadequate where there was no possibility of identifying the person who had posted an advert in the name of the applicant, at the time only twelve years old, on a dating website, thus putting him at risk of sexual abuse. 121. In the present case the Court must consider whether, notwithstanding its past approach in cases concerning violations of the right to respect for private life by the press, Article 8 requires a pre-notification rule in order to ensure effective protection of the right to respect for private life. In doing so, the Court will have regard, first, to the margin of appreciation available to the respondent State in this field (see paragraphs 108 - 110 above) and, second, to the clarity and potential effectiveness of the rule called for by the applicant. While the specific facts of the applicant ’ s case provide a backdrop to the Court ’ s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant ’ s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny. i. The margin of appreciation 122. The Court recalls, first, that the applicant ’ s claim relates to the positive obligation under Article 8 and that the State in principle enjoys a wide margin of appreciation (see paragraph 108 above). It is therefore relevant that the respondent State has chosen to put in place a system for balancing the competing rights and interests which excludes a pre ‑ notification requirement. It is also relevant that a parliamentary committee recently held an inquiry on privacy issues during which written and oral evidence was taken from a number of stakeholders, including the applicant and newspaper editors. In its subsequent report, the Select Committee rejected the argument that a pre-notification requirement was necessary in order to ensure effective protection of respect for private life (see paragraph 54 above). 123. Second, the Court notes that the applicant ’ s case concerned the publication of intimate details of his sexual activities, which would normally result in a narrowing of the margin of appreciation (see paragraph 109 above). However, the highly personal nature of the information disclosed in the applicant ’ s case can have no significant bearing on the margin of appreciation afforded to the State in this area given that, as noted above (see paragraph 121 above), any pre-notification requirement would have an impact beyond the circumstances of the applicant ’ s own case. 124. Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62 - 63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119 ), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56 - 59 above). The Court therefore concludes that the respondent State ’ s margin of appreciation in the present case is a wide one. ii. The clarity and effectiveness of a pre-notification requirement 125. The applicant considered that the duty should be triggered where any aspect of private life was engaged. It would therefore not be limited to the intended disclosure of intimate or sexual details of private life. As such, the duty would be a relatively broad one. Notwithstanding the concerns expressed by the Government and the interveners (see paragraphs 89, 94, 97 and 101 above) the Court considers that the concept of “private life” is sufficiently well understood for newspapers and reporters to be able to identify when a publication could infringe the right to respect for private life. Specific considerations would arise, for example in the context of photographs of crowds, but suitable provisions could be included in any law. The Court is further of the view that a satisfactory definition of those who would be subject to the requirement could be found. It would appear possible, for example, to provide for a duty which would apply to those within the purview of the Editors ’ Code. 126. However, the Court is persuaded that concerns regarding the effectiveness of a pre-notification duty in practice are not unjustified. Two considerations arise. First, it is generally accepted that any pre ‑ notification obligation would require some form of “public interest” exception (see paragraphs 83, 89, 94, 97 and 102 above). Thus a newspaper could opt not to notify a subject if it believed that it could subsequently defend its decision on the basis of the public interest. The Court considers that in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a “public interest” at stake would have to be sufficient to justify non-notification, even if it were subsequently held that no such “public interest” arose. The parties ’ submissions appeared to differ on whether “public interest” should be limited to a specific public interest in not notifying (for example, where there was a risk of destruction of evidence) or extend to a more general public interest in publication of the material. The Court would observe that a narrowly defined public interest exception would increase the chilling effect of any pre-notification duty. 127. In the present case, the defendant newspaper relied on the belief of the reporter and the editor that the sexual activities in which the applicant participated had Nazi overtones. They accordingly argued that publication was justified in the public interest. Although Eady J criticised the casual and cavalier manner in which the News of the World had arrived at the conclusion that there was a Nazi element, he noted that there was significant scope for differing views on the assessment of the “public interest” and concluded that he was not in a position to accept that the journalist and editor concerned must have known at the time that no public interest defence could succeed (see paragraphs 23 - 24 above). Thus, in the applicant ’ s own case, it is not unlikely that even had a legally binding pre-notification requirement been in place at the relevant time, the News of the World would have chosen not to notify in any event, relying at that time on a public interest exception to justify publication. 128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant ’ s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted (see paragraphs 21 and 52 above). Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine. 129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention. iii. Conclusion 130. As noted above, the conduct of the newspaper in the applicant ’ s case is open to severe criticism. Aside from publication of the articles detailing the applicant ’ s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant ’ s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World ’ s coverage merely to titillate the public and increase the embarrassment of the applicant. 131. The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors ’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above). 132. However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention. It considered that, although the disclosure of information on the private lives of those in the public eye was generally for the purposes of entertainment rather than education, it undoubtedly benefited from the protection of Article 10 (freedom of expression) of the Convention. The Article 10 protection afforded to publications might cede to the requirements of Article 8 where the information was of a private and intimate nature and there was no public interest in its disclosure. However, having regard to the chilling effect to which a pre-notification requirement risked giving rise, to the doubts about its effectiveness and to the wide margin of appreciation afforded to the United Kingdom in that area, the Court concluded that Article 8 of the Convention did not require a legally binding pre-notification requirement. |
550 | Inspection of home | RELEVANT LEGAL FRAMEWORK AND PRACTICE 24. Government Decree no. 253/1997 (XII.20) on National Urban Planning and Construction ( OTÉK ) provides as follows: Section 85 Room dimensions “... (4) The volume of each premise – having regard to its capacity should be at least a) 15 m3/person in rooms, hospital rooms and in offices at workplaces. ...” 25. The relevant provisions of Act no. IV of 1978 on the Criminal Code, as in force at the material time, provided as follows: Unlawful entry into private property Article 176 “(1) Any person who enters onto, or remains on, the home or other property or the confines attached to such, of another person by force, or by pretending to conduct an official procedure, is guilty of a minor offence punishable by imprisonment of up to two years.” 26. Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities (hereafter “Equal Treatment Act”) provides, in its relevant part, as follows: Section 4 Scope of the Act “The principle of equal treatment shall be observed by a) the Hungarian State, b) local and minority self-governments and the bodies thereof, c) organisations exercising powers as authorities, ...” Harassment, unlawful segregation Section 10 “(1) Harassment is conduct of a sexual or other nature violating human dignity related to the relevant person’s characteristics defined in Article 8 with the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment around the particular person. ...” Section 14 “(1) The Authority (a) shall, at request or in cases defined herein ex officio, conduct investigations to establish whether the obligations of equal treatment have been violated, and shall also conduct investigations at request to establish whether the employers obliged to do so have approved an equal opportunities plan, and shall finally make decisions on the basis of the investigations;” Section 15 “(1) A violation of the principle of equal treatment within the scope of this Act shall be investigated by a) the Authority or b) another public administration body that has been granted authority in a separate act for assessing violations of the principle of equal treatment, as chosen by the offended party ...” Section 17/A “(1) If the Authority has established that the provisions ensuring the principle of equal treatment laid down herein have been violated, they may a) order that the situation constituting a violation of law be terminated, b) prohibit the further continuation of the conduct constituting a violation of law, c) order that its decision establishing the violation of law be published, d) impose a fine, e) apply a legal consequence determined in a special act. ...” 27. Act no IX of 1998 on the Criminal Procedure Code, as in force at the material time, provided as follows: The private party Section 54 “1) The private party is the victim enforcing a civil claim in criminal proceedings. (2) The private party may enforce the civil claim against the defendant which arose as a consequence of the act being the subject of the accusation. ...” 28. The relevant provisions of Decree no. 3/2009(II.2.) on Social Benefits of the Assembly of the Local Government of Gyöngyöspata, as in force at the material time, provided as follows: Section 7 “(1) Prior to the granting of benefits governed by the present decree, a social inquiry report should be made about the social situation of the applicant and his or her close relatives living in the same household. ... (3) It is not necessary to make a social inquiry report if the applicant’s living conditions have been examined as part of any other procedure and there is no reason to believe that essential changes have occurred since that examination.” Section 8 “Social benefits regulated under the decree are reviewed by the mayor annually or as it is needed.” 29. The Report of the Parliamentary Commissioner for the Rights of National and Ethnic Minorities on public employment, minor offence proceedings, and education in Gyöngyöspata, published in December 2011, contains the following passages: “3.3 A peculiar phenomenon: “official inspections” in Gyöngyöspata “Several complainants mentioned during the on-site investigation that in mid ‑ October, a relatively large group of people visited Roma families in Gyöngyöspata with the intention of inspecting “the living environment and if the criteria for housing subsidy are met”. According to those concerned, the mayor, the municipal clerk, the mayor’s chief of cabinet, two social workers, and two policemen visited the families without prior announcement. First they reviewed the living environment from the outside and made a video recording, and then they all entered the homes in question, measured the size of the rooms and made video recordings. The chief of cabinet, G.P., confirmed the above, with the exception that the two policemen did not enter the homes and video recordings were not made within the homes. The chief of cabinet said that the objective of the proceedings was to evaluate the living environment of the residents concerned and to prepare for the introduction of the so-called ‘Érpatak model’. They wanted to assess how many persons habitually lived in a given flat. He also stated that this measure affected every local resident receiving housing subsidies, rather than only the Roma families. Since it was not clear to me what the aim and legal basis of these measures were, I have addressed two written requests to the public notary of Gyöngyöspata. I have also requested that documents, audio or video recordings of the procedure be sent to me. Unfortunately, I have not received an answer yet and can only express my opinion based on the partial information I have and on Decree no. 3/2009(II.2.) on Social Benefits of the Assembly of the Local Government of Gyöngyöspata. Section 30/A of the above decree enumerates the preconditions for the maintenance of house yards and gardens so as to qualify for unemployment allowances. Sub-section (2) of the same provision provides for an on-site inspection and states that the latter is the responsibility of the public notary, who conducts the inspection ‘with the involvement of a member of the Committee on communal development, environmental protection and public order’. The provisions of the decree on housing benefit do not refer to the special rules on on-site inspection. Thus, the legitimate justification of six or seven ‘public officials’ showing up at the families’ homes, inspecting their living conditions inside the house cannot be established. Section 57/A(4) of Act no. CXL of 2004 on the General Rules of Administrative Proceedings and Services provides for the recording of on-site inspections, objects, procedures. However it is questionable whether in the present case the authorities’ measures can be regarded as on-site inspections, which are subject to strict statutory rules. In order to carry out a successful and safe on-site inspection, section 57/B(1) allows for the presence of police officers, if the nature of the inspection so requires. In the circumstances of the present case, however, it is not clear what justified the presence of the police officers alongside the already large number of public officials. Irrespective of the legal basis of the measure, it can clearly be established that such an inspection, interfering with the private sphere and involving a high number of persons of authority, would be threatening not only to the residents of Gyöngyöspata, but to anyone else. However, in Gyöngyöspata, where those in power are the same forces that can be associated with the spring ‘law enforcement’ action, residents may have experienced this form of inspection as heightened intimidation or even as a form of reprisal. As mentioned above, in the absence of cooperation by the municipality, neither the legal basis nor the factual circumstances of the measures could be established. Therefore, I recommend that the Heves County Governmental Office should conduct an in-depth enquiry into the background and circumstances of the measure and take steps, if necessary, to re-establish legality and prevent further breaches of the law. ...” 30. On 29 May 2012 the Heves County Governmental Office issued a reply to the Commissioner’s request. It contained the following relevant passages: “... Our Office contacted the public notary of Gyöngyöspata to request the documents concerning the particular case and information as regards the nature of the administrative proceedings in which the on-site inspection had been conducted. We have further requested a copy of any local governmental decree that was applicable in the particular case. In his reply of 22 March the public notary informed us that [name] received housing benefit in 2006 and 2007. The public notary stated that the aim of the on-site inspection carried out at [address] on 13 October 2011 was to verify whether provisions of Government Decree no. 253/1997 (XII.20) on National Urban Planning and Construction ( OTÉK ). prescribing that in each room there should be at least 15 cubic meters of air per person had been respected. The public notary referred to the fact that [name] was in receipt of housing benefit, and thus the on-site inspection, to which the client had given his consent, had had the secondary aim of verifying whether the living environment had been tidy. The Heves County Governmental Office requested further information from the public notary in its letter of 28 March, as it had been established that OTÉK¸ as invoked by the public notary, was applicable during the construction of buildings and, additionally, the Government Office could not identify any legal provision which would have allowed the application of § 85 of OTÉK in any other procedure. The Governmental Office had further requested all the relevant documents, including the evidence of the client’s consent in the form of a public document. In his letter of 18 April the public notary stated that the on-site inspection had been carried out by J.J.O., the mayor of Gyöngyöspata, following a report that too many persons had been living at the address in question. On the basis of the information received from the public notary and of the documents at hand, the Governmental Office had established that on 13 October 2011 there had been no ongoing proceedings (either administrative or municipal) which would have allowed the employees of the mayor’s office to legally enter the premises in question. It can be clearly established that, in the absence of jurisdiction, the public notary does not have the power to verify compliance with the OTÉK. Based on the documents transmitted by the public notary, following the decision issued in July 2011, no documented procedural measures (inspection) had been taken place in the procedure concerning [name], and the file had contained no statement of consent. The public notary did not provide any legal provision or his professional point of view. The Government Office informed [name]’s legal representative about these findings. The legal representative was also informed that the Government Office, as the supervisory organ, had no power to remedy the infringement of the client’s right in the course of administrative proceedings. We have forwarded our findings to the mayor’s office and to the public notary of Gyöngyöspata with a request to verify whether labour proceedings should be initiated. ...” In addition, the reply stated that the Government’s Office had initiated proceedings reviewing the legality of Decree no. 3/2009 (II. 2.) of the Assembly of the Local Government of Gyöngyöspata on Social Benefits. The Governmental Office established, inter alia, that the delegation of power to the mayor to decide on housing benefit had been unlawful. It had further been unlawful to make the provision of social benefits subject to the orderliness of the living environment and that this element could be verified with the involvement of a member of the Committee on communal development, environmental protection and public order. Since the municipality had not informed the Governmental Office of the planned measures, the supervisory body initiated proceedings before the Kúria. In the meantime, the municipality had repealed Decree no. 3/2009 and adopted new regulations. 31. The relevant part of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation provides: Article 2 Concept of discrimination “1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there must be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. ... 3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place for the purposes or with the effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States. ...” THE LAW preliminary ISSUE regarding locus standi of the applicant’s heirs 32. The Government challenged the right of the heirs of the applicant, who had died in the course of the proceedings (see paragraph 4 above), to pursue the application in his stead. In their view, those heirs did not have a valid interest in obtaining a ruling by the Court, because, although the applicant had died on 8 April 2015, they had not contacted the applicant’s representative until 1 September and 12 October 2016, respectively, to express their intention to pursue the application before the Court in the applicant’s stead. In the Government’s view, the heirs had only requested the Court to continue examining the application because the applicant’s representative had persuaded them to do so. They invited the Court to strike the case out of its list of cases under Article 37 § 1 of the Convention. 33. The applicant’s representative did not comment on that point. 34. The Court notes that on 1 September and 12 October 2016 the applicant’s representative informed the Court that the applicant had died on 8 April 2015 and that his heirs wished to continue in his stead the proceedings before the Court. The applicant’s representative also submitted a succession certificate. Thus, in the present case, the request to pursue the proceedings was submitted by persons who had the status as both direct heirs and very close relatives of the deceased applicant. 35. It is true that under Article 34 the existence of a victim of a violation is indispensable for the Convention’s protection mechanism to be put in motion. However, this criterion cannot be applied in a rigid, mechanical and inflexible way throughout the proceedings. The Court’s approach to cases introduced by applicants themselves and only continued by their relatives after their deaths differs from its approach to cases in which the application has been lodged after the death of the direct victim. Moreover, the transferability or otherwise of the applicant’s claim is not always decisive, for it is not only material interests which the successors of deceased applicants may pursue by their wish to maintain the application. Cases before the Court generally also have a moral or principled dimension, and persons close to an applicant may thus have a legitimate interest in obtaining a ruling even after that applicant’s death (see Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 73, ECHR 2012 (extracts), with further references). 36. The Court considers that Mr L.F.’s widow and children have a legitimate interest in obtaining a ruling on whether the inspection carried out in the applicant’s home by the authorities constituted a breach of the right to respect for home, the right to an effective remedy and the prohibition of discrimination, on which he had relied in his application. The Court therefore considers that the conditions for striking the case out of the list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at the heirs’ request. However, for practical purposes, reference will still be made to the applicant throughout the ensuing text. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 37. The applicant complained that the inspection of his home had been unlawful and carried out in breach of his right to respect for his “home” and that the Hungarian authorities had failed properly to investigate this incident. He relied on Articles 8 and 13 of the Convention. The Court considers that the above 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 home .... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” AdmissibilityThe Court’s jurisdiction ratione personae The Court’s jurisdiction ratione personae The Court’s jurisdiction ratione personae (a) The parties’ submissions 38. The Government requested the Court to declare the application inadmissible rationae personae with the provisions of the Convention. In their view, the domestic authorities had acknowledged the violation of the applicant’s rights under Article 8 of the Convention, given that both the Parliamentary Commissioner (see paragraph 8 above) and the Heves County Governmental Office (see paragraph 15 above) acknowledged that the provisions of the municipal decree underlying the authorities’ actions had been unlawful. Moreover, by amending the decree in question, the necessary measures had been taken to prevent future violations. 39. The applicant maintained that the report of the Parliamentary Commissioner had contained no binding ruling concerning his case and that the actions taken by the Heves County Governmental Office before the Kúria were directed against the provisions of the municipal decree that had had no bearing on his case, since they had not been in force at the material time and concerned a different kind of social benefit. (b) The Court’s assessment 40. The Court recalls that the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia, Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010). A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI). 41. The Court observes that while it is true that the report of the Parliamentary Commissioner and the inquiry of the Heves County Governmental Office both concluded that the conduct of the municipal authorities had lacked a legal basis or that their practice based on legal provisions invoked by those authorities had been unlawful (see paragraphs 8, 15, 29 and 30 above), they did not contain any element establishing that the applicant’s right to respect for his home had been infringed. It is also relevant that the Governmental Office itself held that it had no power to remedy the infringement of the applicant’s right in the course of administrative proceedings (see paragraph 30 above). In these circumstances, the Court considers that the statements relied on by the Government were not such as to redress the alleged violation of the applicant’s rights under Article 8 of the Convention and to deprive him of his victim status. The application therefore cannot be rejected as being incompatible ratione personae with the provisions of the Convention. The Government’s objections regarding non-exhaustion of domestic remedies and failure to respect the six-month time-limit (a) The parties’ submissions 42. The Government requested the Court to declare this complaint inadmissible for failure to exhaust domestic remedies. Firstly, they submitted that the applicant should have pursued substitute private prosecution proceedings. In the Government’s submission, the criminal complaint lodged by the applicant had constituted an effective remedy only in respect of the allegedly unlawful entering onto his property but could not be regarded as an effective remedy for the domestic authorities’ alleged failure to carry out an effective investigation. Substitute private prosecution was not an alternative to a criminal complaint, since it had been conceived specifically to redress alleged errors in criminal investigations. It could also help protect victims’ rights by obtaining further evidence and allowing the victim to present his legal position, independently from the standpoint of the public prosecutor. Furthermore, had the applicant availed himself of this legal avenue he could have further challenged the decision of the courts before the Constitutional Court by means of a constitutional complaint. 43. They also argued that the allegedly low success rate of substitute private prosecution proceedings (see paragraph 47 below) did not mean that this procedure was inefficient, since the dismissal of such applications was mainly due to non-compliance with the formal requirements of private prosecution. Besides, pursuant to a study carried out between 2003 and 2010 the most frequent reason for the discontinuation of proceedings had been the withdrawal of complaints by the substitute private prosecutor. 44. The Government contested the applicant’s arguments concerning fear of retribution (see paragraph 47 below). They pointed out that no charges could be brought against a person for falsely initiating substitute private prosecution proceedings, and substitute private prosecutors were not required to be present when the defendants were being heard before the courts. 45. They further maintained that the applicant could have initiated civil proceedings seeking damages for the alleged unlawful actions of public authorities or for the violation of his personality rights. The aim of such civil proceedings would not have been to establish criminal responsibility but to provide compensation for the alleged breach of the applicant’s rights. By submitting a criminal complaint only, the applicant had deprived himself of an effective legal remedy providing compensation for the alleged violation of his rights under Article 8. 46. Lastly, Government requested that the Court declare this complaint inadmissible inasmuch as it had been directed against the discontinuation of the investigation into the alleged abuse of authority, since the applicant had failed to lodge his complaint within the six-month time-limit provided for in Article 35 § 1 of the Convention. They submitted that the six-month time ‑ limit had started to run on 3 August 2012, the date of the termination of the criminal investigations into this crime, which the applicant had not challenged subsequently. 47. The applicant, for his part, submitted that substitute private prosecution proceedings would not have provided an effective remedy affording redress, in particular given the difficulties in obtaining evidence and in taking other investigation measures. He argued that the low success rate of substitute private prosecution proceedings proved that they had no prospect of success either in his case or in general. He also maintained that there had been a real risk of retribution, since a person bringing private prosecution proceedings before the courts could subsequently be charged with falsely accusing someone of having committed a crime. This risk had been particularly relevant in his case, since the alleged perpetrators had been members of the local government and since the police and the prosecutor’s office had clearly been unwilling to ensure the protection of his rights against those authorities. 48. The applicant argued that by lodging a criminal complaint in respect of the unlawful entry into his property, he had exhausted the available domestic remedies and was thus not required to initiate separate civil compensation proceedings against the person responsible for the incident. In addition, since the issue of liability had not been clarified by the criminal investigation, it had been doubtful whether his civil action would have had any prospect of success. 49. Lastly, the applicant contested the Government’s argument that his complaint should be dismissed for failure to respect the six-month time-limit. He argued that he had pursued his criminal complaint concerning the unlawful entry into his property by the authorities. (b) The Court’s assessment 50. In assessing whether an applicant has complied with Article 35 § 1 of the Convention, it is important to bear in mind that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016, and the cases cited therein). Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III). 51. The Court notes that, in the present case, the applicant diligently explored the criminal avenue of redress by lodging a criminal complaint against those allegedly responsible for the specific incident, alleging unlawful entry onto private property and abuse of authority (see paragraph 17 above). In his complaint of 6 August 2012 about the discontinuation of the proceedings he insisted that the authorities had unlawfully entered his property on the pretence of conducting official proceedings (see paragraph 19 above). While it is true that the applicant did not pursue his complaint concerning the abuse of authority, he did maintain his claims concerning the unlawful entry into his home by the authorities in his further complaint against the discontinuation order obtained at first instance (see paragraph 22 above). 52. The Court further points out that the applicant complained before it that his right to respect for his home had been violated owing to the unlawful entry of public officials into his house. The focus of the criminal proceedings before the domestic investigating and prosecuting authorities was precisely the question whether or not the mayor and other members of the municipal administration had acted in breach of the Criminal Code, which prohibited unlawful entry into private property. The remedy pursued by the applicant allowed for the examination of criminal responsibility, whereby the investigating authorities were under the obligation to gather evidence and establish the circumstances of the incident. Those proceedings were thus capable of leading to the identification and, if appropriate, punishment of those responsible. In these circumstances, the Court finds that the applicant raised the complaint about the infringement of his right to respect for his home and thus provided the domestic authorities with the opportunity to put right the alleged violation, irrespective of the fact that he had not pursued his complaint about the alleged abuse of authority. In any event, the effectiveness of the criminal complaint concerning the unlawful entry into private property has not been disputed by the Government (see paragraph 42 above). 53. As regards the Government’s submission concerning the applicant’s failure to initiate private prosecution proceedings, the Court has held in a number of cases that applicants are not required, with respect to the exhaustion of domestic remedies, to bring substitute private prosecutions, essentially because to do so would constitute the pursuit of a legal avenue that would have the same objective as their criminal complaints (see R.S. v. Hungary, no. 65290/14, § 38, 2 July 2019; M.F. v. Hungary, no. 45855/12, § 34, 31 October 2017; R.B. v. Hungary, cited above, §§ 60 ‑ 65; and Borbála Kiss v. Hungary, no. 59214/11, §§ 25-27, 26 June 2012; see also Matko v. Slovenia, no. 43393/98, § 95, 2 November 2006). The Court sees no reason to hold otherwise in the circumstances of the present case. 54. As to the question whether the applicant ought to have brought separate civil proceedings in addition to lodging a criminal complaint, the Court refers, first of all, to its above-mentioned finding that the choice to initiate criminal proceedings constituted an effective remedy for the applicant’s complaint about the infringement of his right to respect for his home. 55. In this respect, the Court recalls that, where several remedies are available, the applicant is not required to pursue more than one and it is normally that individual’s choice as to which. Consequently, the Court considers that the present applicant cannot be required to avail himself of an additional legal avenue in the form of a civil action (see Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009, with further references). It is satisfied that the applicant has thus exhausted domestic remedies. 56. In view of the foregoing, the Government’s objection to the effect that the applicant failed to exhaust domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected. The Court would further note that the Gyöngyös public prosecutor’s office issued the decision on the discontinuation of the investigation on 19 July 2013 and that the applicant then went on to lodge his application with the Court on 19 December 2013. It follows that the applicant complied with the six-month rule and that the Government’s objection in this respect must likewise be rejected. (c) Conclusion as to admissibility 57. The Court furthermore notes that the 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 58. The applicant argued that representatives of the public authorities intruded into his home without any legal basis. He pointed out that a number of enquiries had been carried out concerning the authorities’ actions, and that during those procedures the mayor’s office had invoked different reasons and legal provisions to substantiate the legality of the inspection in question, including the need to verify the number of people living in the house for its compliance with urban construction rules and the need to assess the eligibility of the applicant’s wife for social benefits. However, as concluded by the Parliamentary Commissioner and the Heves County Governmental Office, there had been no legal basis for the mayor and his colleagues to enter his home. 59. The applicant also contested the legitimacy of the aim of the interference, arguing that the public interest in protecting the economic well ‑ being of the country was not a valid reason for inspecting the living conditions of persons in receipt of housing benefit. In any case, all the information allegedly sought by the authorities had been available in official registers. 60. The applicant further submitted that the authorities had failed to investigate effectively the public officials’ intrusion into his home. He complained of several perceived omissions on the part of the investigating authorities. In particular, they had erroneously relied on the fact that the applicant had not objected to the inspection, since this element had been irrelevant in situations where authorities entered private property on the pretext of conducting an official procedure. In the applicant’s view, there had been clear indications that the authorities had misled the applicant about the nature of the inspection; yet those elements had been ignored by the investigation authorities. Nor had the investigating authorities considered the public officials’ intentions or whether the latter had been aware of the unlawfulness of their actions. 61. In the applicant’s view, the investigating and prosecuting authorities had clearly demonstrated their unwillingness to carry out an effective investigation. In particular, the Gyöngyös Police Department had only requested its exclusion for bias after having dismissed his criminal complaint twice. Furthermore, the authorities had unreasonably delayed the investigation, even though the facts of the case had never been disputed. (b) The Government 62. In the Government’s submission, the applicant’s complaint concerned not the inspection of his home but the fact that the alleged perpetrators had not been indicted and that no criminal law remedy had been provided for his complaint. The Government initially admitted that the inspection had been unlawful under public law since it had been based on a municipal decree that had subsequently been repealed. It had also been in breach of the Administrative Proceedings Act. Nonetheless, it had not constituted an offence under the Criminal Code. In that sense, for the Government, the interference had been in accordance with the law. In their subsequent submissions the Government contested the argument that the legal provisions underlying the actions in question had been unlawful and maintained that sections 7 and 8 of Municipal Decree no. 3/2009 provided for a legal basis of the inspection. 63. The Government argued that the conduct of the representatives of the municipality administration had constituted a criminal offence only if they had been aware that they had not acted in their official capacity. The Government relied on the findings of the prosecuting authorities that since it could not be established that the public officials had been deliberately pretending to carry out an official procedure, no crime could be established. The Government maintained that the applicant had not provided any domestic case-law substantiating his argument that public officials should be held criminally responsible for conduct which they had believed to be lawful. 64. In the Government’s view, in so far as the applicant’s complaint was to be understood as requiring the legislator to enact criminal-law sanctions for the conduct in question, this went beyond the States’ positive obligations under Article 8 of the Convention. Criminal-law sanctions should only be applicable for the most serious breaches of the law. The third-party intervener 65. The European Roma Rights Centre (ERRC), in their third-party observations, pointed out that the inspection of the applicant’s home had been an example of anti-Gypsyism in Hungary. This phenomenon, in their view, also manifested itself in the provision of social benefits, where many social assistance recipients were required to engage in economically insignificant labour in order to receive subsistence-level support. They also pointed out that Roma faced discriminatory treatment by the local authorities. The Court’s assessment (a) General principles 66. The Court reiterates that any measure, if it is no different in its manner of execution and its practical effects from a search, amounts, regardless of its characterisation under domestic law, to interference with applicants’ rights under Article 8 of the Convention (see Belousov v. Ukraine, no. 4494/07, § 103, 7 November 2013). 67. The Court further notes from its well-established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law (see Halford v. the United Kingdom, 25 June 1997, § 49, Reports of Judgments and Decisions 1997 ‑ III), which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner in which it is exercised (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82, and Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000 ‑ II). 68. The interference with the right to respect for private and family life must therefore be based on a “law” that guarantees proper safeguards against arbitrariness. There must be safeguards to ensure that the discretion left to the executive is exercised in accordance with the law and without abuse of powers. The requirements of Article 8 with regard to safeguards will depend, to some degree at least, on the nature and extent of the interference in question (see Solska and Rybicka v. Poland, nos. 30491/17 and 31083/17, § 113, 20 September 2018). (b) Application of those principles to the present case (i) Whether there was an interference 69. The Court notes that various authorities of the Gyöngyöspata municipality performed “inspections” of the applicant’s house on 13 October 2011. The Court, having regard to its case-law (see paragraph 66 above), considers that this constituted an interference with the applicant’s right to respect for his home, protected under Article 8 of the Convention. 70. In order to be justified under Article 8 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society (see Pretty v. the United Kingdom, no. 2346/02, § 68, ECHR 2002 ‑ III). (ii) Whether the impugned interference was “in accordance with the law” 71. In their submissions under this head, the parties disagreed as to the applicable law and the existence of a legal basis under domestic law. 72. The Court observes that according to the information contained in the case file, the authorities did not rely on any provision of domestic law in carrying out the actions in dispute and failed to prepare an official record of the procedure. 73. When responding to the investigating authorities’ inquiry following the applicant’s criminal complaint of 19 October 2011, the position of the mayor’s office was that the inspection had been based on section 85(4)(a) of OTÉK (see paragraph 24 above), which, in their view, authorised the public notary to verify whether the applicant’s home complied with construction regulations (see paragraph 10 above). The applicant’s criminal complaint had been dismissed both by the police and the prosecutor’s office, finding that the measure had been carried out pursuant to that provision (see paragraphs 11 and 13 above). On 22 March 2012 the municipality’s public notary invoked the same legal basis in the course of the inquiry conducted by the Governmental Office. However, the Governmental Office concluded that that provision was inapplicable to the applicant’s case and that the municipal authorities were not empowered to carry out an inspection based on that provision (see paragraph 30 above). Thus, the subsequent decisions issued in connection to the applicant’s criminal complaint did not refer to the provisions of OTÉK as a legal basis for the inspection. 74. The Court further notes that as a secondary reason for the inspection, the mayor’s office invoked before the investigating authorities the fact that the applicant’s wife was in receipt of housing benefit from the municipality. The mayor’s office nonetheless did not rely on any provision of domestic law in this respect in the first set of criminal investigation. 75. It was only submitted in the criminal investigation ensuing from the inquiry of the Governmental Office that those actions were taken in implementation of Municipal Decree no. 3/2009. This argument had been accepted by the national investigating and prosecuting authorities (see paragraphs 21 and 23 above). 76. In their submission, the Government also suggested that the above provisions were relevant for the inspection of the applicant’s home (see paragraph 62 above). 77. The Court observes that the section 7 of the Municipal Decree provided for on-site inspections prior to the allocation of social benefits and in its section 8 for an annual revision of the provision of benefit. Even assuming that the persons appearing at the applicant’s home had intended to rely on those provisions, the Court finds, firstly, that the provisions in question were not “foreseeable as to [their] effects” for the applicant. In particular, while it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, in the present case the Court must note that the municipal decree only provided that on-site inspections could be carried out prior to the allocation of social benefits, but that there was no specific reference to inspections in connection with the subsequent provision of benefit. 78. More importantly, as established by the Governmental Office and not contested by the Government, the last decision on social benefits concerning the applicant’s household had been issued in July 2011 and at the time of the inspection no official procedure – either for the provision or the revision of benefits – had been conducted. Thus, even supposing that section 7 taken in conjunction with section 8 of the municipal decree allowed for inspections to review the provision of social benefits, this was clearly irrelevant to the applicant’s case in the absence of any official procedure. Thus, those provisions could not serve as a legal basis for carrying out the impugned actions. 79. No other legal instruments have been relied on either by the domestic authorities or by the Government as being applicable to the inspection of the applicant’s home. 80. The foregoing considerations are sufficient for the Court to conclude that the interference was not “in accordance with the law”. This renders it unnecessary for the Court to examine whether it was undertaken in pursuit of a “legitimate aim” and was “necessary in a democratic society”, within the meaning of Article 8 of the Convention. There has accordingly been a violation of that provision. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 81. The applicant further complained that the actions of the Gyöngyöspata authorities and the lack of an effective investigation into the incident had also been discriminatory, based on his Roma origin. He relied on Article 14 taken in conjunction with Article 8 of the Convention. 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.” Admissibility Applicability of Article 14 in conjunction with Article 8 of the Convention (a) The parties’ submissions 82. In the Government’s submission, since no crime had been committed by the local authorities, the alleged racist motive or racist attitude of the authorities had also been irrelevant in terms of criminal law. Racist motives alone, without the manifestation of a criminal conduct, did not constitute a criminal offence requiring investigation and prosecution. 83. The applicant maintained that his Roma origin had been a causal factor in the actions of the mayor and his colleagues, and their conduct had had an intimidating and frightening effect on him. In addition, in the applicant’s view, the State authorities had failed to comply with their positive obligations to take all reasonable steps to uncover any possible racist motives behind the incident. (b) The third-party intervener 84. ERRC argued that the conduct of the authorities had constituted harassment – unwanted conduct relating to the applicant’s ethnic origin –and institutional racism manifest in the local authorities’ discriminatory policy and their failure to provide protection from discrimination. (c) The Court’s assessment 85. Inasmuch as the Government’s argument can be understood as raising the issue of the applicability of Article 14 the Convention, the Court would reiterate its consistent case-law to the effect that this provision has no independent existence, but plays an important role by complementing the other provisions of the Convention and its Protocols, since it protects individuals placed in similar situations from any discrimination in the enjoyment of the rights set forth in those other provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter. The Court has also held that even in a situation where the substantive provision is not applicable, Article 14 may still be applicable (see Đorđević v. Croatia, no. 41526/10, §§ 157-58, ECHR 2012, with further references). 86. Discrimination on account of, inter alia, a person’s ethnic origin is a form of racial discrimination. Racial discrimination is a particularly invidious kind of discrimination 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, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment. The Court has also held that no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 176, ECHR 2007 ‑ IV, with further references). 87. On this point the Court also refers to Council Directive 2000/43/EC (see paragraph 31 above) and section 10 of the Hungarian Equal Treatment Act (see paragraph 26 above), both prohibiting harassment as a form of discrimination, which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. 88. Furthermore, as the Court has previously held where alleged bias ‑ motivated treatment constituted an interference with the applicant’s right to private life under Article 8, that is, when a person makes credible assertions that he or she has been subjected to harassment motivated by racism, including verbal assaults and physical threats, an obligation may arise for the State authorities that to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have also played a role in the events (see R.B. v. Hungary, cited above, §§ 83 ‑ 84, and Burlya and Others v. Ukraine, no. 3289/10, § 163, 6 November 2018). 89. The Court observes that the applicant’s complaint about discrimination relates to the authorities’ intrusion into his home, which clearly falls within the ambit of Article 8. The Court also agrees with the assertion of the applicant and the third-party intervener that the notion of discrimination within the meaning of Article 14 also includes cases where the alleged discrimination occurs as harassment related to racial or ethnic origin. Having regard to the foregoing considerations, the Court finds that Article 14 of the Convention, in conjunction with Article 8, is applicable. Exhaustion of domestic remedies (a) The parties’ submissions 90. The Government pointed out that although the applicant had submitted a complaint concerning the discontinuation of the investigation by the police on 11 June 2013 (see paragraph 22 above), this complaint did not concern the alleged racist motive of the municipal authorities’ conduct. Thus, in their view the applicant had not exhausted all domestic remedies available to him. Furthermore, in reply to the third-party observations, the Government submitted that the applicant could have initiated proceeding under the Equal Treatment Act. 91. The applicant observed, in particular, that he had explained in detail in his second criminal complaint of 25 June 2012 that in his view the mayor and his colleagues had entered his house with the intention of harassing him because of his Roma origin. However, the law-enforcement authorities failed to detect the racist motive behind this conduct. (b) The Court’s assessment 92. The Court notes that it has already examined the issue of exhaustion of domestic remedies as regards a discrimination complaint separately from the exhaustion issues concerning the main complaint (see Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, §§ 104-08, 25 October 2011). This approach goes hand in hand with the principle that where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Đorđević, cited above, § 159). Consequently, admissibility issues concerning Article 14 may be assessed separately. 93. The object of the rule of 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. 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 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 a 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 Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III). 94. As regards the present case, the Court will examine under Article 14 the issue of exhaustion of domestic remedies in relation to the Government’s assertion that the applicant had not raised his discrimination complaint at the national level. 95. In his application to this Court, the applicant’s position was that the motive behind the on-site inspection had been to harass him because of his Roma origin and that the investigating authorities had not taken all reasonable steps to uncover any possible racist motive behind the incident. 96. In his criminal complaint of 25 June 2012 the applicant submitted that the acts of the authorities had constituted unlawful entry into his private property by means of a spurious official procedure, as well as abuse of authority, with a racist motive, as evidenced by the Commissioner’s report (see paragraph 17 above). Accordingly, before the Gyöngyös police department, both the intrusion of the applicant’s home and the biased attitude of the authorities were challenged. He reiterated the same arguments in his objection to the dismissal of his criminal complaint (see paragraph 19 above). 97. However, in the course of the resumed investigation proceedings the applicant’s objection lodged with the prosecutor’s office against the decision of the Hatvan police department discontinuing the investigation the applicant only put forward the arguments that the authorities’ conduct constituted the offence of intrusion of private property. He did not reiterate before the Gyöngyös prosecutor’s office his argument that the inspection had had racist motives (see paragraph 22 above). 98. In addition the Court notes the Government’s argument that a victim of discrimination can pray in aid the Equal Treatment Act, which in its section 17/A provides for various forms of injunctive, declaratory and/or punitive relief to victims of discrimination (see paragraph 26 above). The Court observes that the applicant had not made use of this legal avenue. Against the above background, the Court considers that the applicant had failed to make use of the remedies available to him in respect of the alleged racist motive behind the incident. 99. It therefore follows that 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 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.” Damage 101. The applicant’s heirs claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage. 102. The Government contested this claim. They argued that the applicant’s heirs had not suffered any non-pecuniary damage on account of the violation of the applicant’s right to home, evidenced by the fact that they had not intended to pursue the application. 103. The Court awards the applicant’s heirs, jointly, EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 104. The applicant’s heirs also claimed EUR 2,248 for the costs and expenses incurred before the domestic courts and EUR 1,705 for those incurred before the Court. In total they claimed EUR 3,953 in respect of costs and expenses. In support of this claim, they submitted pro-forma invoices and payslips from their lawyers. They also submitted a detailed time sheet indicating the amount of hours spent by the lawyers for the preparation of the case: 145 hours of legal work, charged at an hourly rate of EUR 15.5 in respect of the proceedings before the Hungarian authorities, and 110 hours of legal work, charged at an hourly rate of 15.5 in respect of the proceedings before the Court. 105. The Government contested the applicant’s heirs’ claim for the costs and expenses incurred in the domestic proceedings. They argued that those costs had not occurred to rectify the alleged violation of the Convention but in relation to other proceedings. 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,953 covering costs under all heads, plus any tax that may be chargeable to the applicant’s heirs. 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 8 (right to respect for home) of the Convention in the present case, finding that the reasons given by the mayor’s office for the inspection had had no legal basis. It noted, in particular, that the construction regulations had not been applicable in the case and that a decree referred to with regard to the housing benefits was irrelevant because no official procedure had been pending in that regard which would have allowed the authorities to enter the applicant’s home. On the other hand, the Court declared inadmissible, for non-exhaustion of domestic remedies, the applicant’s complaint under Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 8, noting that the applicant had not reiterated his argument that the inspection had had racist overtones in the last set of proceedings concerning his case. |
408 | Deprivation of liberty / Restriction on the freedom of movement | II. RELEVANT DOMESTIC LAW AND MATERIAL A. The Constitution 32. Article 13 of the Italian Constitution reads as follows: “Personal liberty is inviolable. No one may be detained, inspected, or searched, or otherwise subjected to any restriction of personal liberty, except by a reasoned order of a judicial authority and only in such cases and in such manner as provided by law. In exceptional circumstances and under such conditions of necessity and urgency as shall be precisely defined by law, the police may take provisional measures that shall be referred within 48 hours to a judicial authority and which, if not validated by the latter in the following 48 hours, shall be deemed withdrawn and ineffective. Any act of physical or mental violence against persons subjected to a restriction of personal liberty shall be punished. The law shall establish the maximum duration of any preventive measure of detention ( carcerazione preventiva ).” B. Legislation on the removal of irregular migrants 33. Legislative Decree ( decreto legislativo ) no. 286 of 1998 (“Consolidated text of provisions concerning immigration regulations and rules on the status of aliens”), as amended by Laws no. 271 of 2004 and no. 155 of 2005, and by Legislative Decree no. 150 of 2011, provides inter alia as follows: Article 10 (refusal of entry) “1. The border police shall refuse entry ( respinge ) to aliens who seek to cross the border without meeting the conditions laid down in the present consolidated text governing entry into the territory of the State. 2. Refusal of entry combined with removal shall, moreover, be ordered by the Chief of Police ( questore ) in respect of aliens: (a) who have entered the territory of the State by evading border controls, when they are arrested on entry or immediately afterwards; (b) or who ... have been temporarily allowed to remain for purposes of public assistance. ... 4. The provisions of paragraphs 1 [and] 2 ... do not apply to the situations provided for in the applicable provisions governing political asylum, the grant of refugee status or the adoption of temporary protection measures on humanitarian grounds. ...” Article 13 (administrative deportation) “1. For reasons of public order or national security the Minister of the Interior may order the deportation of an alien, even if he or she [does not reside] in the territory of the State, giving prior notice thereof to the Prime Minister and the Minister for Foreign Affairs. 2. The prefect shall give directions for removal where the alien: (a) has entered the territory of the State by evading border controls and has not already been refused entry under Article 10 hereof; ... 8. An appeal may be lodged against a deportation order with the judicial authority ...” Article 14 (execution of removal measures) “1. Where, in view of the need to provide assistance to an alien, to conduct additional checks of his or her identity or nationality, or to obtain travel documents, or on account of the lack of availability of a carrier, it is not possible to ensure the prompt execution of the deportation measure by escorting the person to the border or of the refusal-of-entry measure, the Chief of Police ( questore ) shall order that the alien be held for as long as is strictly necessary at the nearest Identification and Removal Centre, among those designated or created by order of the Minister of the Interior in collaboration ( di concerto ) with the Minister for Social Solidarity and the Treasury, the Minister for the Budget, and the Minister for Economic Planning. ...” C. Criminal Code 34. Article 54 § 1 of the Criminal Code reads, in its relevant part, as follows: “Acts committed under the constraint of having to save [the perpetrator or a third party] from an instant danger of serious bodily harm shall not be liable to punishment, provided that such danger has not been voluntarily caused [by the perpetrator] and cannot otherwise be avoided, and provided that the said act is proportionate to the danger. ...” D. Italian Senate 35. On 6 March 2012 the Italian Senate’s Special Commission for Human Rights (the “Senate’s Special Commission”) approved a report “on the state of [respect for] human rights in prisons and reception and detention centres in Italy”. Visited by the Commission on 11 February 2009, the Lampedusa CSPA is described particularly in the following passages: “Stays at the Lampedusa centre were supposed to be limited to the time strictly necessary to establish the migrant’s identity and the lawfulness of his presence in Italy or to decide on his removal. In reality, as has already been criticised by the UNHCR and a number of organisations operating on the spot, the duration of such stays has sometimes extended to over twenty days without there being any formal decision as to the legal status of the person being held. Such prolonged confinement, combined with an inability to communicate with the outside world, and the lack of freedom of movement, without any legal or administrative measure providing for such restrictions, has led to heightened tension, often manifested in acts of self-harm. Numerous appeals by organisations working on the island have been made concerning the lawfulness of the situation there. ... The rooms measure about 5 x 6 metres: they are supposed to accommodate twelve persons. They contain four-tier bunk beds, placed side by side, occupied by up to twenty-five men per room ... In many of the blocks, foam-rubber mattresses are placed along the corridor. In many cases the foam-rubber from the mattresses has been torn away to be used as a cushion. In some cases, double mattresses, protected by improvised covers, have been placed on the landings, outside ... On the ceiling, in many rooms, the plastic shade around the light has been removed and the bulb has disappeared. At the end of the corridor, on one side, there are toilets and showers. There is no door and privacy is ensured by cloth or plastic curtains placed in an improvised and haphazard manner. There are no taps and water flows from the pipes only when centrally activated. The pipes sometimes get blocked; on the floor, water or other liquids run as far as the corridor and into the rooms where the foam-rubber mattresses have been placed. The smell from the toilets pervades the whole area. When it starts to rain, those on the metal staircases, who have to go up to the floor above, get wet and carry dampness and dirt into the living quarters.” V. OTHER RELEVANT INTERNATIONAL LAW MATERIAL A. International Law Commission 46. The International Law Commission (ILC), at its sixty-sixth session, in 2014, adopted a set of “Draft articles on the expulsion of aliens”. This text was submitted to the United Nations General Assembly, which took note of it (Resolution A/RES/69/119 10 December 2014). The following Articles are of particular interest: Article 2 Use of terms “For the purposes of the present draft articles: (a) ’expulsion’ means a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State; it does not include extradition to another State, surrender to an international criminal court or tribunal, or the non-admission of an alien to a State; (b) ’alien’ means an individual who does not have the nationality of the State in whose territory that individual is present.” Article 3 Right of expulsion “A State has the right to expel an alien from its territory. Expulsion shall be in accordance with the present draft articles, without prejudice to other applicable rules of international law, in particular those relating to human rights.” Article 4 Requirement for conformity with law “An alien may be expelled only in pursuance of a decision reached in accordance with law.” Article 5 Grounds for expulsion “1. Any expulsion decision shall state the ground on which it is based. 2. A State may only expel an alien on a ground that is provided for by law. 3. The ground for expulsion shall be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise. 4. A State shall not expel an alien on a ground that is contrary to its obligations under international law.” Article 9 Prohibition of collective expulsion “1. For the purposes of the present draft article, collective expulsion means expulsion of aliens, as a group. 2. The collective expulsion of aliens is prohibited. 3. A State may expel concomitantly the members of a group of aliens, provided that the expulsion takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. 4. The present draft article is without prejudice to the rules of international law applicable to the expulsion of aliens in the event of an armed conflict involving the expelling State.” Article 13 Obligation to respect the human dignity and human rights of alienssubject to expulsion “1. All aliens subject to expulsion shall be treated with humanity and with respect for the inherent dignity of the human person at all stages of the expulsion process. 2. They are entitled to respect for their human rights, including those set out in the present draft articles.” Article 15 Vulnerable persons “1. Children, older persons, persons with disabilities, pregnant women and other vulnerable persons who are subject to expulsion shall be considered as such and treated and protected with due regard for their vulnerabilities. 2. In particular, in all actions concerning children who are subject to expulsion, the best interests of the child shall be a primary consideration.” Article 17 Prohibition of torture or cruel, inhuman or degrading treatmentor punishment “The expelling State shall not subject an alien subject to expulsion to torture or to cruel, inhuman or degrading treatment or punishment.” Article 19 Detention of an alien for the purpose of expulsion “1. (a) The detention of an alien for the purpose of expulsion shall not be arbitrary nor punitive in nature. (b) An alien detained for the purpose of expulsion shall, save in exceptional circumstances, be separated from persons sentenced to penalties involving deprivation of liberty. 2. (a) The duration of the detention shall be limited to such period of time as is reasonably necessary for the expulsion to be carried out. All detention of excessive duration is prohibited. (b) The extension of the duration of the detention may be decided upon only by a court or, subject to judicial review, by another competent authority. 3. (a) The detention of an alien subject to expulsion shall be reviewed at regular intervals on the basis of specific criteria established by law. (b) Subject to paragraph 2, detention for the purpose of expulsion shall end when the expulsion cannot be carried out, except where the reasons are attributable to the alien concerned.” 47. In its Commentary to Draft Article 9 the ILC observed in particular as follows: “(1) Paragraph 1 of draft article 9 contains a definition of collective expulsion for the purposes of the present draft articles. According to this definition, collective expulsion is understood to mean the expulsion of aliens ‘as a group’. This criterion is informed by the case-law of the European Court of Human Rights. It is a criterion that the Special Rapporteur on the rights of non-citizens of the Commission on Human Rights, Mr. David Weissbrodt, had also endorsed in his final report of 2003. Only the ‘collective’ aspect is addressed in this definition, which must be understood in the light of the general definition of expulsion contained in draft article 2, subparagraph (a). ... (4) The prohibition of the collective expulsion of aliens set out in paragraph 2 of the present draft article should be read in the light of paragraph 3, which elucidates it by specifying the conditions under which the members of a group of aliens may be expelled concomitantly without such a measure being regarded as a collective expulsion within the meaning of the draft articles. Paragraph 3 states that such an expulsion is permissible provided that it takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles. The latter phrase refers in particular to draft article 5, paragraph 3, which states that the ground for expulsion must be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise. ...” B. Council of Europe’s Parliamentary Assembly 48. The facts of the case are connected with the large-scale arrival of unlawful migrants on the Italian coast in 2011 following, in particular, the uprisings in Tunisia and the conflict in Libya. 49. In that context the Council of Europe’s Parliamentary Assembly (PACE) set up an “Ad Hoc Sub-Committee on the large-scale arrival of irregular migrants, asylum-seekers and refugees on Europe’s southern shores” (the “PACE Ad Hoc Sub-Committee”), which carried out a fact ‑ finding visit to Lampedusa on 23 and 24 May 2011. A report on the visit was published on 30 September 2011. Its relevant passages read as follows: “II. History of Lampedusa as a destination for mixed migration flows ... 9. Because of its geographical location close to the African coast, Lampedusa has experienced several episodes in which it has had to cope with a large influx by sea of people wanting to go to Europe (31 252 in 2008; 11 749 in 2007; 18 047 in 2006; 15 527 in 2005). 10. The numbers arriving fell sharply in 2009 and 2010 (2 947 and 459, respectively) following an agreement between Italy and Muammar Gaddafi’s Libya. This agreement drew strong criticism because of the human rights violations in Libya and the appalling living conditions of migrants, refugees and asylum-seekers in the country. It also drew criticism, subsequently validated by UNHCR, that it risked denying asylum seekers and refugees access to international protection. It did however prove extremely effective in halting the influx and as a result, the island’s reception centres were then closed and the international organisations active in Lampedusa withdrew their field presence. 11. In 2011, following the uprisings in Tunisia and then in Libya, the island was confronted with a fresh wave of arrivals by boat. Arrivals resumed in two stages. The first to arrive on the island were Tunisians, followed by boats from Libya, among which many women and young children. The influx began on 29 January 2011 and the population of the island was quickly multiplied by two. 12. Following these arrivals, Italy declared a humanitarian emergency in Lampedusa and called for solidarity from the European Union member states. The Prefect of Palermo was given emergency powers to manage the situation. 13. As of 21 September 2011, 55 298 people had arrived by sea in Lampedusa (27 315 from Tunisia and 27 983 from Libya, mainly nationals of Niger, Ghana, Mali and the Côte d’Ivoire). ... THE LAW I. PRELIMINARY OBJECTION 51. In a document of 9 July 2013 containing their additional observations and submissions on just satisfaction before the Chamber, the Government for the first time raised an objection that domestic remedies had not been exhausted, on the ground that the applicants had not appealed to the Italian judicial authorities against the refusal-of-entry orders. 52. The Chamber took the view that the Government were estopped from raising the objection that domestic remedies had not been exhausted. It pointed out that under Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Contracting Party, in so far as the nature of the objection and the circumstances so allowed, in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X). In the present case, the Government had not clearly raised an objection as to the non-exhaustion of domestic remedies in their observations of 25 September 2013 on the admissibility and merits, and the question of a failure by the applicants to lodge an appeal against the refusal-of-entry orders was raised only in their additional observations and submissions on just satisfaction. The Chamber further noted that the Government had not provided any explanation for that delay and that there was no exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner (see paragraphs 38 and 39 of the Chamber judgment). 53. The Grand Chamber does not see any reason to depart from the Chamber’s findings on that point. It further notes that during the proceedings before it the Government did not indicate any impediment by which they had been prevented from referring, in their initial observations of 25 September 2013 on the admissibility and merits of the case, to a failure by the applicants to challenge the refusal-of-entry orders. 54. It is therefore appropriate to confirm that the Government are estopped from relying on a failure to exhaust domestic remedies. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 55. The applicants complained that they had been deprived of their liberty in a manner that was incompatible with Article 5 § 1 of the Convention, which reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Chamber judgment 56. The Chamber began by finding that the applicants had been deprived of their liberty within the meaning of Article 5 § 1 of the Convention. The applicants’ allegation that they had been prohibited from leaving the CSPA and the ships Vincent and Audace was not in dispute (see paragraphs 46-51 of the Chamber judgment). 57. The Chamber then took the view that the deprivation of liberty imposed on the applicants fell under sub-paragraph (f) of the first paragraph of Article 5. However, it had no legal basis in Italian law. In that connection, the Chamber observed that Italian law did not provide for the detention of migrants placed in a CSPA. In addition, in his decision of 1 June 2012, the Palermo preliminary investigations judge had stated that the Agrigento police authority had merely registered the presence of the migrants in the CSPA without taking decisions ordering their detention. The Chamber explained that the existence of a practice of de facto detention of migrants in Italy had been confirmed by the reports of the Senate’s Special Commission and the PACE Ad Hoc Sub-Committee. The April 2011 agreement between Italy and Tunisia had not been accessible to those concerned and its consequences had therefore been unforeseeable. In the Chamber’s view, it could not be established that the agreement provided for satisfactory safeguards against arbitrariness. The Chamber concluded in the light of the foregoing that the applicants’ deprivation of liberty had not been “lawful” within the meaning of Article 5 § 1 of the Convention and that there had been a violation of that provision in the present case (paragraphs 66-73 of the Chamber judgment). B. The Government’s objection to the applicability of Article 5 § 1 of the Convention 1. The parties’ submissions (a) The Government 58. The Government argued in the first place that Article 5 was inapplicable in the present case as the applicants had not been deprived of their liberty. They had been received in a CSPA, a centre not designed for detention but to provide first aid and assistance (in terms of health and hygiene in particular) to all the migrants who arrived in Italy in 2011 for the time necessary to identify them, in accordance with the relevant Italian and European rules, and to proceed with their return. The applicants had then been transferred, for their own safety, to the ships Vincent and Audace – which, in the Government’s submission, had to be regarded as the “natural extension of the CSPA” of Lampedusa – on account of the arson attack which had destroyed the centre (see paragraph 14 above). 59. Faced with a humanitarian and logistical emergency, the Italian authorities had been obliged to seek new premises which, in the Government’s view, could not be regarded as places of detention or arrest. The surveillance of the CSPA by the Italian authorities was merely protective, in order to avoid criminal or harmful acts being committed by the migrants or against the local inhabitants. In the Government’s view, the need for such surveillance had been shown by the subsequent events, in particular the above-mentioned arson attack and the clashes between local people and a group of migrants (see paragraph 26 above). 60. In the light of the foregoing, the Government argued, as they had done before the Chamber, that there had been neither “arrest” nor “detention” but merely a “holding” measure. The applicants had been rescued on the high seas and taken to the island of Lampedusa to assist them and to ensure their physical safety. The Government explained that the authorities had been obliged by law to save and identify the applicants, who had been in Italian territorial waters at the time their vessels had been intercepted by the coastguards. Any measure taken against the applicants could not therefore, in their view, be regarded as an arbitrary deprivation of liberty. On the contrary, the measures had been necessary to deal with a situation of humanitarian emergency and to strike a fair balance between the safety of the migrants and that of the local inhabitants. (b) The applicants 61. The applicants acknowledged that, under Italian law, the CSPAs were not detention centres but reception facilities. They argued, however, that this fact did not preclude the finding that, in practice, they had been deprived of their liberty in the Lampedusa CSPA and on the ships Vincent and Audace, in spite of the domestic law classification of the confinement. They observed that, to ascertain whether a person had been deprived of his or her liberty, the starting-point had to be his or her concrete situation and not the legal characterisation of the facility in question. Otherwise States would be able to implement forms of deprivation of liberty without any safeguards simply by classifying the premises in question as a “reception facility” rather than a “detention facility”. 62. The applicants pointed out that they had been held in a secure facility under the constant watch of the police for periods of nine and twelve days respectively without the possibility of leaving. That situation had been confirmed by the reports of the PACE Ad Hoc Sub-Committee (see paragraph 49 above) and of the Senate’s Special Commission (see paragraph 35 above). The Commission had reported prolonged periods of confinement, inability to communicate with the outside world and a lack of freedom of movement. 2. Third-party intervention 63. The Centre for Human Rights and Legal Pluralism of McGill University (“the McGill Centre”) observed that the facts of the case were similar to those in Abdolkhani and Karimnia v. Turkey (no. 30471/08, 22 September 2009), where the Court had dismissed the respondent Government’s argument that the applicants had not been detained but accommodated. 3. The Court’s assessment (a) Principles laid down in the Court’s case-law 64. The Court reiterates that, in proclaiming the right to liberty, the first paragraph of Article 5 is concerned with a person’s physical liberty and its aim is to ensure that no one should be dispossessed of such liberty in an arbitrary fashion (see Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010). The difference between deprivation of liberty and restrictions on freedom of movement under 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 a person has been deprived of liberty, the starting-point must be his or her concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see Amuur v. France, 25 June 1996, § 42, Reports of Judgments and Decisions 1996-III, and Stanev v. Bulgaria [GC], no. 36760/06, § 115, ECHR 2012). (b) Application of those principles in the present case 65. The Court begins by noting that the Government acknowledged that the Italian authorities had kept the CSPA at Contrada Imbriacola under surveillance (see paragraph 59 above) and did not dispute the applicants’ allegation (see paragraph 62 above) that they were prohibited from leaving the centre and the ships Vincent and Audace. 66. Moreover, like the Chamber, the Court notes that in paragraph 54 of its report published on 30 September 2011 (see paragraph 49 above), the PACE Ad Hoc Sub-Committee found that “[d]espite the authorities’ claim that the Tunisians were not detainees because they were not in cells, ... the conditions to which they were subjected [in the Contrada Imbriacola centre] were similar to detention and deprivation of freedom”. It also stated that the migrants were, “[i]n practice, ... imprisoned there without access to a judge” (see §§ 54-55 of the report). 67. Similar observations can be found in the report of the Senate’s Special Commission (see paragraph 35 above), which referred to the “prolonged confinement”, “inability to communicate with the outside world” and “lack of freedom of movement” of the migrants placed in the Lampedusa reception centres. 68. Before the Court, the Government did not adduce any material capable of calling into question the findings of those two independent bodies, one of which, the Senate’s Special Commission, is an institution of the respondent State. Nor did the Government submit any information to suggest that the applicants were free to leave the Contrada Imbriacola CSPA. On the contrary, the applicants’ version seems to be corroborated by the fact – not disputed by the Government – that when on 21 September 2011 they had managed to evade the police surveillance and reach the village of Lampedusa, they were stopped by the police and taken back to the reception centre (see paragraph 14 above). This suggests that the applicants were being held at the CSPA involuntarily (see, mutatis mutandis, Stanev, cited above, § 127). 69. Similar considerations apply to the ships Vincent and Audace, which, according to the Government themselves, were to be regarded as the “natural extension of the CSPA” (see paragraph 58 above). The Court finds no evidence in the file to suggest that the applicants could have left the ships, not even when they were moored in Palermo harbour. 70. The Court notes, lastly, that the duration of the applicants’ confinement in the CSPA and on the ships, lasting for about twelve days in the case of the first applicant and about nine days in that of the second and third applicants, was not insignificant. 71. In the light of the foregoing, the Court finds that the classification of the applicants’ confinement in domestic law cannot alter the nature of the constraining measures imposed on them (see, mutatis mutandis, Abdolkhani and Karimnia, cited above, §§ 126-27). Moreover, the applicability of Article 5 of the Convention cannot be excluded by the fact, relied on by the Government, that the authorities’ aim had been to assist the applicants and ensure their safety (see paragraphs 58-59 above). Even measures intended for protection or taken in the interest of the person concerned may be regarded as a deprivation of liberty. The Court observes that Article 5 § 1 authorises, in its sub-paragraph (d), the “detention of a minor by lawful order for the purpose of educational supervision” (see, for example, Blokhin v. Russia [GC], no. 47152/06, §§ 164-72, ECHR 2016, and D.L. v. Bulgaria, no. 7472/14, §§ 6 and 69-71, 19 May 2016) and in its sub-paragraph (e), the “lawful detention ... of persons of unsound mind, alcoholics or drug addicts or vagrants” (see, for example, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 67-70, Series A no. 12; Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; and, in particular, Witold Litwa v. Poland, no. 26629/95, § 60, ECHR 2000-III). 72. Having regard to the restrictions imposed on the applicants by the authorities, the Court finds that the applicants were deprived of their liberty, within the meaning of Article 5, in the Contrada Imbriacola CSPA and on the ships Vincent and Audace, and that Article 5 is therefore applicable. 73. It follows that the Court has jurisdiction ratione materiae to examine the applicants’ complaints under Article 5. The Government’s objection in that connection must therefore be dismissed. C. Merits 1. The parties’ submissions (a) The applicants 74. According to the applicants, their deprivation of liberty had no legal basis. They observed that they had been held in closed facilities under constant police surveillance with the aim of “preventing them from unlawfully entering” Italy. They argued, however, that the authorities had not acted in accordance with the law, because no refusal-of-entry or removal procedure compliant with domestic law had been initiated against them; instead they had been returned using a simplified procedure provided for by an agreement of 2011 between Italy and Tunisia (see paragraphs 36-40 above). They emphasised that their deprivation of liberty had not been justified by any judicial decision. 75. The applicants explained that under Italian law (Article 14 of Legislative Decree no. 286 of 1998, see paragraph 33 above), the only legal form of deprivation of liberty of an unlawful migrant awaiting return was placement in a CIE, subject to judicial supervision (validation of administrative detention decisions by a Justice of the Peace), as required by Article 5 of the Convention. 76. The applicants reiterated their observations before the Chamber. They argued in particular that, according to the legislation, the Lampedusa CSPA and the ships moored in Palermo harbour were not detention facilities but open reception facilities and that no form of validation of such placement by a judicial authority was provided for. By using the CSPA as a detention centre, Italy had removed the applicants’ deprivation of liberty from any judicial supervision. The same could be said of their confinement on the ships. 77. The applicants also observed that the treatment to which they had been subjected could not be justified on the basis of Article 10 § 2 of Legislative Decree no. 286 of 1998 (see paragraph 33 above), which in their view provided for so-called “deferred” refusal of entry when an alien had entered Italy, “for purposes of public assistance”. The above-cited Article 10 made no mention of deprivation of liberty or of any procedure for a possible confinement measure. 78. In so far as the Government had argued that the situation complained of had been prompted by an emergency, the applicants argued that the real source of the problems on the island had been the political decision to concentrate the confinement of aliens on Lampedusa. In their view there was no insurmountable organisational difficulty preventing the authorities from arranging a regular service for the transfer of migrants to other places in Italy. Moreover, they explained that to deprive aliens of their liberty without judicial oversight was not permitted by any domestic legislation, even in an emergency. Article 13 of the Constitution (see paragraph 32 above) provided that in exceptional cases of necessity and urgency, the administrative authority was entitled to adopt measures entailing deprivation of liberty; however, such measures had to be referred within forty-eight hours to a judicial authority, which had to validate them in the following forty-eight hours. In the present case the applicants submitted that they had been deprived of their liberty without any decision by an administrative authority and without validation by a judicial authority. 79. The applicants also noted that the conditions for derogation under Article 15 of the Convention were not met and that in any event Italy had not notified its intention to exercise its right of derogation. Accordingly, even if it were proven – contrary to the applicants’ position – that the Italian Government had been obliged, at the relevant time, to handle an unforeseeable and exceptional arrival of migrants, no conclusion could be drawn therefrom for the purposes of Article 5 of the Convention. 80. The applicants argued that, in spite of repeated criticisms from various national and international institutions, the procedure for managing the arrival of migrants as described in their application was still applied by the Italian authorities, with the result that there was a systemic and structural violation of the fundamental right to liberty of migrants and the courts had allowed it to continue. The applicants pointed out in this connection that from the autumn of 2015 onwards, the Lampedusa CSPA had been identified as one of the facilities where the so-called “hotspot” approach could be implemented, as recommended by the European Union, whereby migrants would be identified and asylum-seekers separated from economic migrants. In 2016 the Italian authorities had continued to run this facility as a secure centre where migrants were detained without any legal basis. (b) The Government 81. The Government observed, as they had done before the Chamber, that the facts of the case did not fall within the scope of sub-paragraph (f) of Article 5 § 1 of the Convention; the applicants had not been held pending deportation or extradition, but had on the contrary been temporarily allowed to enter Italy. In that connection, the Government pointed out that the applicants had been accommodated in a CSPA, and not sent to a CIE. They explained that the legal conditions for placing the applicants in a CIE had not been fulfilled; in particular, no additional verification of their identity had been necessary in their view. 82. The Government acknowledged that, as indicated by the Palermo preliminary investigations judge in his decision of 1 June 2012 (see paragraphs 24-29 above), the domestic provisions in force did not expressly provide for a confinement measure in respect of migrants placed in a CSPA. Such a measure, under the supervision of the Justice of the Peace, was, however, provided for when migrants were placed in a CIE. The presence of the migrants in the CSPA had nevertheless been duly recorded. Moreover, each of the migrants had been issued with a refusal-of-entry and removal order, mentioning the date of their unlawful entry into Italy. Those orders had been duly notified to the migrants concerned. In the Government’s submission, they had not been referred to the Justice of the Peace because such supervision was only necessary in cases of deportation ( espulsione ) and not refusal of entry ( respingimento ). 83. At the hearing before the Court, the Government further alleged that the bilateral agreement between Italy and Tunisia (see paragraphs 36-40 above) could have constituted a legal basis for the holding of the applicants on the island of Lampedusa pending their prompt return. The aim of that agreement had been to reinforce border controls and to facilitate the return of irregular migrants through simplified procedures; it had also been announced, for example, on the websites of the Italian Ministries of the Interior and of Foreign Affairs and on that of the Tunisian Government. In the Government’s view, it would not be credible to suggest that the applicants, who had access to modern information technology, had not been aware of the return procedures applicable to them. 2. Third-party intervention (a) AIRE Centre and ECRE 84. The AIRE Centre and ECRE argued that, under Article 1 of the European Union’s Charter of Fundamental Rights, any measures entailing the deprivation of liberty of migrants and the conditions of such detention had to ensure respect for their human dignity and for the principle of non ‑ discrimination, regardless of the number of new arrivals and any situation of emergency that might arise in a given State. Moreover, recital 16 in the preamble to the Return Directive (see paragraph 41 above) stated as follows: “The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient”. In addition, States had to ensure that the necessary legal assistance and/or representation was granted at the migrant’s request (Article 13 § 4 of the Return Directive). 85. The two third-party interveners observed that in its Bashir Mohamed Ali Mahdi judgment (case C-146/14 PPU, 5 June 2014), the CJEU had explained that the Return Directive, read in the light of Articles 6 and 47 of the Charter of Fundamental Rights, provided that any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, had to be in the form of a written measure that included the reasons in fact and in law for that decision. In addition, the review of the reasons for extending the detention of a third-country national had to be carried out on a case-by-case basis, applying the proportionality principle, to ascertain whether detention might be replaced with a less coercive measure or whether the migrant should be released. Lastly, the CJEU had found that the judicial authority had power to take into account the facts stated and evidence adduced by the administrative authority which had brought the matter before it, as well as any facts, evidence and observations which might be submitted to the judicial authority in the course of the proceedings. (b) The McGill Centre 86. According to the McGill Centre, the principle of proportionality should guide the Court in its analysis of the arbitrary nature of a detention. The law and legal theory were lacking when it came to the status and protection applicable to irregular migrants who did not apply for asylum; this legal void made them particularly vulnerable. The United Nations Human Rights Committee had interpreted Article 9 of the International Covenant on Civil and Political Rights as incorporating a requirement of lawfulness and a broader protection against arbitrariness. It had specified that additional factors such as lack of cooperation or the possibility of absconding had to be present in order for the detention of an irregular migrant to be in conformity with Article 9, and that the existence of other, less invasive, means had to be taken into account (the intervening party referred, inter alia, to C. v. Australia, Communication no. 900/1999, UN document CCPRIC/76/D900/1999 (2002)). Similar principles, such as that of the proportionality of the detention in the light of the circumstances, were to be found in texts of the Council of Europe and EU directives, to the effect that detention should be used only as a measure of last resort. 87. The third-party intervener argued that the detention had to be based on a clear and certain legal basis or on a valid judicial decision, with the possibility of effective and rapid judicial supervision as to its conformity with national and international law. While the Court had been careful not to impose an excessive burden on States dealing with significant migratory flows, it nevertheless should only find the detention of migrants to be proportionate where there were no other, less invasive, means of achieving the aim pursued. The Court had taken a step in that direction in the case of Rusu v. Austria (no. 34082/02, 2 October 2008), where, as there was no indication that the applicant had any intention of staying illegally in Austria or that she would not have cooperated in the removal process, it had found the detention to be arbitrary. 3. The Court’s assessment (a) Principles established in the Court’s case-law 88. The Court reiterates that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds. Moreover, 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 many other authorities, Giulia Manzoni v. Italy, 1 July 1997, § 25, Reports 1997-IV; Labita v. Italy [GC], no. 26772/95, § 170, ECHR 2000 ‑ IV; Velinov v. the former Yugoslav Republic of Macedonia, no. 16880/08, § 49, 19 September 2013; and Blokhin, cited above, § 166). 89. One of the exceptions, contained in sub-paragraph (f) of Article 5 § 1, permits the State to control the liberty of aliens in an immigration context (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008; A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 162-163, ECHR 2009; and Abdolkhani and Karimnia, cited above, § 128). 90. Article 5 § 1 (f) does not require the detention to be reasonably considered necessary, for example to prevent the individual from committing an offence or fleeing. However, any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified only 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 A. and Others v. the United Kingdom, cited above, § 164). 91. The deprivation of liberty must also be “lawful”. 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 of that law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244; Stanev, cited above, § 143; Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013; and L.M. v. Slovenia, no. 32863/05, § 121, 12 June 2014). In laying down that any deprivation of liberty must be effected “in accordance with a procedure prescribed by law”, Article 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law. They also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention (see Amuur, cited above, § 50, and Abdolkhani and Karimnia, cited above, § 130). 92. On this last point, the Court stresses that where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III; Steel and Others v. the United Kingdom, 23 September 1998, § 54, Reports 1998 ‑ VII; Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000 ‑ IX; Paladi v. Moldova [GC], no. 39806/05, § 74, 10 March 2009; and Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009). (b) Application of those principles in the present case (i) The applicable rule 93. The Court must first determine whether the applicants’ deprivation of liberty was justified under one of the sub-paragraphs of Article 5 § 1 of the Convention. As the list of permissible grounds on which persons may be deprived of their liberty is exhaustive, any deprivation of liberty which does not fall within one of the sub ‑ paragraphs of Article 5 § 1 of the Convention will inevitably breach that provision (see, in particular, the case-law cited in paragraph 88 above). 94. The Government, arguing that the applicants were not awaiting deportation or extradition, took the view that the facts of the case did not fall within sub-paragraph (f) of Article 5 § 1 of the Convention, which authorised a person’s “lawful arrest or detention ... to prevent his effecting an unauthorised entry into the country” or when “deportation or extradition” proceedings were pending against the person (see paragraph 81 above). The Government did not, however, indicate under which other sub-paragraph of Article 5 the deprivation of liberty could be justified in the applicants’ case. 95. The applicants were of the view, however, that they had been deprived of their liberty with the aim of “prevent[ing them from] effecting an unauthorised entry into” Italy (see paragraph 74 above). 96. Like the Chamber, and in spite of the Government’s submission and the classification of the applicants’ return in domestic law, the Court is prepared to accept that the deprivation of liberty in the applicants’ case fell within sub-paragraph (f) of Article 5 § 1 (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, § 38, ECHR 2002-I). In that connection it observes that the applicants had entered Italy and that the refusal-of-entry orders concerning them (see paragraph 19 above) had stated expressly that they had entered the country by evading border controls, and therefore unlawfully. Moreover, the procedure adopted for their identification and return manifestly sought to address that unlawful entry. (ii) Whether there was a legal basis 97. It must now be determined whether the applicants’ detention had a legal basis in Italian law. 98. It is not in dispute between the parties that only Article 14 of the “Consolidated text of provisions concerning immigration regulations and rules on the status of aliens” (Legislative Decree no. 286 of 1998 – see paragraph 33 above) authorises, on the order of the Chief of Police, the detention of a migrant “for as long as is strictly necessary”. However, that provision applies only where removal by escorting the person to the border or a refusal-of-entry measure cannot be implemented immediately, because it is necessary to provide assistance to the alien, to conduct additional identity checks, or to wait for travel documents or the availability of a carrier. As a result, migrants in this category are placed in a CIE. However, the Government themselves have admitted that the legal conditions for placement of the applicants in a CIE were not fulfilled, so they were not held in such a facility (see paragraph 81 above). 99. It follows that Article 14 of Legislative Decree no. 286 of 1998 could not have constituted the legal basis for the applicants’ deprivation of liberty. 100. The Court now turns to the question whether such basis could be found in Article 10 of Legislative Decree no. 286 of 1998 (see paragraph 33 above). This provision provides for the refusal of entry and removal of, among other categories of alien, those allowed to remain temporarily in Italy on public assistance grounds. The Court has not found any reference therein to detention or other measures entailing deprivation of liberty that could be implemented in respect of the migrants concerned. Indeed, the Government have not disputed this. 101. In those circumstances the Court does not see how the above-mentioned Article 10 could have constituted the legal basis for the applicants’ detention. 102. To the extent that the Government take the view that the legal basis for holding the applicants on the island of Lampedusa was the bilateral agreement between Italy and Tunisia of April 2011 (see paragraph 83 above), the Court would note at the outset that the full text of that agreement had not been made public. It was therefore not accessible to the applicants, who accordingly could not have foreseen the consequences of its application (see in particular the case-law cited in paragraph 92 above). Moreover, the press release published on the website of the Italian Ministry of the Interior on 6 April 2011 merely referred to a strengthening of the border controls and the possibility of the immediate return of Tunisian nationals through simplified procedures (see paragraphs 37-38 above). It did not, however, contain any reference to the possibility of administrative detention or to the related procedures. 103. The Court further notes that the Government, in an annex to their request for referral to the Grand Chamber, produced for the first time a note verbale concerning another bilateral agreement with Tunisia, preceding that of April 2011 and dating back to 1998 (see paragraph 40 above). Even though that agreement does not seem to be the one applied to the applicants, the Court has examined the note verbale in question. It has not, however, found any reference in it to cases where irregular migrants might be subjected to measures depriving them of their liberty. Point 5 of Chapter II of the note verbale merely indicates that interviews could be carried out at the court office, or in the reception centre or medical facility where the persons concerned were legally residing, without adding any clarification. In those circumstances it is difficult to understand how the scant information available as to the agreements entered into at different times between Italy and Tunisia could have constituted a clear and foreseeable legal basis for the applicants’ detention. 104. The Court would further observe that its finding that the applicants’ detention was devoid of legal basis in Italian law has been confirmed by the report of the Senate’s Special Commission (see paragraph 35 above). The Special Commission noted that stays at the Lampedusa centre, which in principle should have been limited to the time strictly necessary to establish the migrant’s identity and the lawfulness of his or her presence in Italy, sometimes extended to over twenty days “without there being any formal decision as to the legal status of the person being held”. According to the Special Commission, such prolonged confinement, “without any legal or administrative measure” providing for it, had led to “heightened tension”. It should also be noted that the PACE Ad Hoc Sub-Committee expressly recommended that the Italian authorities “clarify the legal basis for the de facto detention in the reception centres in Lampedusa”, and where Tunisians in particular were concerned, that they should “keep irregular migrants in administrative detention only under a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review” (see § 92, (vi) and (vii), of the report published on 30 September 2011, cited in paragraph 49 above). 105. In the light of the legal situation in Italy and the foregoing considerations, the Court takes the view that persons placed in a CSPA, which is formally regarded as a reception facility and not a detention centre, could not have the benefit of the safeguards applicable to placement in a CIE, which for its part had to be validated by an administrative decision subject to review by the Justice of the Peace. The Government did not allege that such a decision had been adopted in respect of the applicants and, in his decision of 1 June 2012, the Palermo preliminary investigations judge stated that the Agrigento police authority had merely registered the presence of the migrants in the CSPA without ordering their placement and that the same was true for the migrants’ transfer to the ships (see paragraphs 25-26 above). Consequently, the applicants were not only deprived of their liberty without a clear and accessible legal basis, they were also unable to enjoy the fundamental safeguards of habeas corpus, as laid down, for example, in Article 13 of the Italian Constitution (see paragraph 32 above). Under that provision, any restriction of personal liberty has to be based on a reasoned decision of the judicial authority, and any provisional measures taken by a police authority, in exceptional cases of necessity and urgency, must be validated by the judicial authority within forty-eight hours. Since the applicants’ detention had not been validated by any decision, whether judicial or administrative, they were deprived of those important safeguards. 106. In the light of the foregoing, the Court finds that the provisions applying to the detention of irregular migrants were lacking in precision. That legislative ambiguity has given rise to numerous situations of de facto deprivation of liberty and the fact that placement in a CSPA is not subject to judicial supervision cannot, even in the context of a migration crisis, be compatible with the aim of Article 5 of the Convention: to ensure that no one should be deprived of his or her liberty in an arbitrary fashion (see, among many other authorities, Saadi, cited above, § 66). 107. Those considerations are sufficient for the Court to find that the applicants’ deprivation of liberty did not satisfy the general principle of legal certainty and was not compatible with the aim of protecting the individual against arbitrariness. It cannot therefore be regarded as “lawful” within the meaning of Article 5 § 1 of the Convention. 108. Accordingly, there has been a violation of Article 5 § 1 of the Convention in the present case. III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 109. The applicants complained that they had not had any kind of communication with the Italian authorities throughout their stay in Italy. They relied on Article 5 § 2 of the Convention, which reads 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.” A. Chamber judgment 110. The Chamber observed that the applicants had most probably been made aware of their status as irregular migrants but found that basic information as to the legal status of a migrant did not satisfy the requirements of Article 5 § 2 of the Convention, under which the legal and factual grounds for the deprivation of liberty had to be notified to the person concerned. The Chamber further noted that the Government had failed to produce any official document addressed to the applicants containing such information. Moreover, the refusal-of-entry orders, which made no mention of the applicants’ detention, were apparently notified only on 27 and 29 September 2011, respectively, whereas the applicants had been placed in the CSPA on 17 and 18 September. Thus they had not been provided with the information “promptly” as required by Article 5 § 2. The Chamber thus concluded that there had been a violation of this provision (see paragraphs 82-85 of the Chamber judgment). B. The parties’ submissions 1. The applicants 111. The applicants observed that the refusal-of-entry orders had been adopted only at the time of the enforcement of their return, and thus only at the end of the period of detention. Consequently, they took the view that, even assuming that those orders had been notified to them, the guarantee of being informed “promptly” under Article 5 § 2 of the Convention had not been observed. In addition, those orders had merely set out in a summary and standardised manner the legal basis for the refusal-of-entry measure, but had made no mention, not even implicitly, of the reasons for their detention pending removal. 112. The applicants further took the view that the information provided for in Article 5 § 2 had to emanate from the authority carrying out the arrest or placement in detention – or, in any event, from official sources. During their deprivation of liberty they had had no contact with the authorities, not even orally, concerning the reasons for their detention. The fact that members of non-governmental organisations had been able to communicate with the migrants on this subject could not, in their view, satisfy the requirements of that provision. 2. The Government 113. The Government asserted that the applicants had been informed in a language which they understood, by police officers present on the island, assisted by interpreters and cultural mediators, of their status, which was that of Tunisian citizens temporarily admitted to Italian territory for reasons of “public assistance”, in accordance with Article 10 § 2 (b) of Legislative Decree no. 286 of 1998 (see paragraph 33 above). In their view, that status had automatically entailed the applicants’ return to Tunisia, as provided for in the refusal-of-entry and removal orders. In any event, the members of the organisations which had access to the CSPA at Contrada Imbriacola had informed the migrants about their situation and the possibility of their imminent removal. C. Third-party intervention 114. The McGill Centre observed that the right to be informed of the reason for detention was necessary in order to be able to challenge the lawfulness of the measure. The United Nations working group on arbitrary detention required that the information given to the detainee at the time of his or her arrest had to explain how the detention could be challenged. The Centre added that the lawfulness of the detention had to be open to regular review when it was extended. D. The Court’s assessment 1. Principles established in the Court’s case-law 115. Paragraph 2 of Article 5 lays down an elementary safeguard: any person who has been arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: any person who has been arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his deprivation of liberty, so as to be able to apply to a court to challenge its lawfulness in accordance with paragraph 4 (see Van der Leer v. the Netherlands, 21 February 1990, § 28, Series A no. 170 ‑ A, and L.M. v. Slovenia, cited above, §§ 142-43). Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 40, Series A no. 182, and Čonka, cited above, § 50). 116. In addition, the Court has previously held that the requirement of prompt information is to be given an autonomous meaning extending beyond the realm of criminal law measures (see Van der Leer, cited above, §§ 27-28, and L.M. v. Slovenia, cited above, § 143). 2. Application of those principles in the present case 117. The Court would observe that it has already found, under Article 5 § 1 of the Convention, that the applicants’ detention had no clear and accessible legal basis in Italian law (see paragraphs 93-108 above). In those circumstances the Court fails to see how the authorities could have informed the applicants of the legal reasons for their deprivation of liberty or thus have provided them with sufficient information to enable them to challenge the grounds for the measure before a court. 118. It is highly probable, of course, that the applicants were aware that they had entered Italy unlawfully. As the Chamber rightly pointed out, the very nature of their journey, on rudimentary vessels (see paragraph 11 above), and the fact that they had not applied for entry visas, indicated that they had sought to circumvent immigration laws. Moreover, the PACE Ad Hoc Sub-Committee observed that the Tunisians with whom its members had spoken “were perfectly aware that they had entered Italian territory illegally” (see § 56 of the report published on 30 September 2011, cited in paragraph 49 above). Lastly, there is no reason to contradict the Government’s statement that the applicants had been informed, in a language they understood, by police officers on the island, assisted by interpreters and cultural mediators, that they had been temporarily allowed to enter Italy for purposes of “public assistance”, with the prospect of their imminent return (see paragraph 113 above). Nevertheless, information about the legal status of a migrant or about the possible removal measures that could be implemented cannot satisfy the need for information as to the legal basis for the migrant’s deprivation of liberty. 119. Similar considerations apply to the refusal-of-entry orders. The Court has examined those documents (see paragraph 19 above), without finding any reference in them to the applicants’ detention or to the legal and factual reasons for such a measure. The orders in question merely stated that they had “entered the territory of the country by evading the border controls” and that they were to be returned. 120. It should also be observed that the refusal-of-entry orders were apparently notified to the applicants very belatedly, on 27 and 29 September 2011, respectively, although they had been placed in the CSPA on 17 and 18 September (see paragraphs 19-20 above). Consequently, even if the orders had contained information as to the legal basis for the detention, which was not the case, they would not in any event have satisfied the requirement of promptness (see, mutatis mutandis, Shamayev and Others v. Georgia and Russia, no. 36378/02, § 416, ECHR 2005 ‑ III, and L.M. v. Slovenia, cited above, § 145, where the Court found that an interval of four days fell outside the time constraints imposed by the notion of promptness for the purposes of Article 5 § 2). 121. The Court lastly notes that, apart from the refusal-of-entry orders, the Government have not adduced any document capable of satisfying the requirements of Article 5 § 2 of the Convention. 122. The foregoing considerations suffice for it to conclude that, in the present case, there has been a violation of Article 5 § 2. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 123. The applicants alleged that at no time had they been able to challenge the lawfulness of their deprivation of liberty. They relied on Article 5 § 4 of the Convention, 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. The Chamber judgment 124. The Chamber found that, since the applicants had not been informed of the reasons for their deprivation of liberty, their right to have its lawfulness decided had been deprived of all effective substance. This consideration sufficed for the Chamber to find that there had been a violation of Article 5 § 4 of the Convention. It additionally observed that the refusal-of-entry orders did not mention the legal or factual basis for the applicants’ detention and that the orders had been notified to the applicants shortly before their return by plane, and therefore at a time when their deprivation of liberty had been about to end. Accordingly, even assuming that the lodging of an appeal against those orders with the Justice of the Peace could be regarded as affording an indirect review of the lawfulness of the detention, such an appeal could not have been lodged until it was too late (see paragraphs 95-98 of the Chamber judgment). B. The parties’ submissions 1. The applicants 125. The applicants did not deny that there had been a possibility of appealing against the refusal-of-entry orders, but submitted that they had not been able to challenge the lawfulness of their detention. No decision justifying their deprivation of liberty had been adopted or notified to them; accordingly, it had not been open to them to challenge any such decision in a court. In addition, the refusal-of-entry orders had not concerned their liberty, but rather their removal, and had been adopted at the end of their period of detention. 2. The Government 126. The Government noted that the refusal-of-entry orders had indicated that it was open to the applicants to lodge an appeal with the Justice of the Peace in Agrigento (see paragraph 19 above). Some other Tunisian migrants had in fact used that remedy, and in 2011 the Justice of the Peace had annulled two refusal-of-entry orders (see paragraphs 30-31 above) as a result. The Government concluded that the applicants had certainly had the possibility of applying to a court to challenge the lawfulness of their alleged deprivation of liberty. 127. At the hearing before the Court, the Government further argued that since the applicants had been accommodated in the CSPA and on board the ships for reasons of assistance, no judicial review of their detention had been necessary. C. The Court’s assessment 1. Principles established in the Court’s case-law 128. 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, such 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 1996 ‑ V; and A. and Others v. the United Kingdom, cited above, § 202). 129. 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 v. Russia, no. 44009/05, § 123, ECHR 2008, and Stanev, cited above, § 169). 130. The existence of the remedy must nevertheless be sufficiently certain, not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness (see Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII, and Abdolkhani and Karimnia, cited above, § 139). 131. Article 5 § 4 also secures to persons arrested or detained the right to have the lawfulness of their detention decided “speedily” by a court and to have their release ordered if the detention is not lawful (see, for example, Baranowski, cited above, § 68). Proceedings concerning issues of deprivation of liberty require particular expedition (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 79, ECHR 2003-IV), and any exceptions to the requirement of “speedy” review of the lawfulness of a measure of detention call for strict interpretation (see Lavrentiadis v. Greece, no. 29896/13, § 45, 22 September 2015). The question whether the principle of speedy proceedings has been observed is not to be addressed in the abstract but in the context of a general assessment of the information, taking into account the circumstances of the case (see Luberti v. Italy, 23 February 1984, §§ 33-37, Series A no. 75; E. v. Norway, cited above, § 64; and Delbec v. France, no. 43125/98, § 33, 18 June 2002), particularly in the light of the complexity of the case, any specificities of the domestic procedure and the applicant’s behaviour in the course of the proceedings (see Bubullima v. Greece, no. 41533/08, § 27, 28 October 2010). In principle, however, since the liberty of the individual is at stake, the State must ensure that the proceedings are conducted as quickly as possible (see Fuchser v. Switzerland, no. 55894/00, § 43, 13 July 2006, and Lavrentiadis, cited above, § 45). 2. Application of those principles in the present case 132. In cases where detainees had not been informed of the reasons for their deprivation of liberty, the Court has found that their right to appeal against their detention was deprived of all effective substance (see, in particular, Shamayev and Others, cited above, § 432; Abdolkhani and Karimnia, cited above, § 141; Dbouba v. Turkey, no. 15916/09, § 54, 13 July 2010; and Musaev v. Turkey, no. 72754/11, § 40, 21 October 2014). Having regard to its finding, under Article 5 § 2 of the Convention, that the legal reasons for the applicants’ detention in the CSPA and on the ships had not been notified to them (see paragraphs 117-22 above), the Court must reach a similar conclusion under this head. 133. This consideration suffices for the Court to conclude that the Italian legal system did not provide the applicants with a remedy whereby they could obtain a judicial decision on the lawfulness of their deprivation of liberty (see, mutatis mutandis, S.D. v. Greece, no. 53541/07, § 76, 11 June 2009) and makes it unnecessary for the Court to determine whether the remedies available under Italian law could have afforded the applicants sufficient guarantees for the purposes of Article 5 § 4 of the Convention (see, for example and mutatis mutandis, Shamayev and Others, cited above, § 433). 134. As an additional consideration, and in response to the Government’s argument to the effect that an appeal to the Agrigento Justice of the Peace against the refusal-of-entry orders met the requirements of Article 5 § 4 of the Convention (see paragraph 126 above), the Court would note, first, that the refusal-of-entry orders did not make any reference to the applicants’ detention or to the legal or factual reasons for such a measure (see paragraph 119 above), and secondly that the orders were only notified to the applicants when it was too late, on 27 and 29 September 2011 respectively (see paragraph 120 above), shortly before they were returned by plane. This was rightly pointed out by the Chamber. It follows that the orders in question cannot be regarded as the decisions on which the applicants’ detention was based, and the lodging of an appeal against them with the Justice of the Peace could not, in any event, have taken place until after the applicants’ release on their return to Tunisia. 135. There has thus been a violation of Article 5 § 4 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 136. The applicants argued that they had sustained inhuman and degrading treatment during their detention in the CSPA at Contrada Imbriacola on the island of Lampedusa and on board the ships Vincent and Audace moored in Palermo harbour. They relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Chamber judgment 137. The Chamber began by noting that, following the events surrounding the “Arab Spring”, in 2011 the island of Lampedusa had been facing an exceptional situation characterised by mass arrivals of migrants and a humanitarian crisis, burdening the Italian authorities with many obligations and creating organisational and logistical difficulties (see paragraphs 124-27 of the Chamber judgment). However, in the Chamber’s view, those factors could not release the respondent State from its obligation to secure to the applicants conditions of confinement that were compatible with respect for their human dignity, having regard to the absolute nature of the Article 3 rights (see paragraph 128 of the Chamber judgment). 138. The Chamber then found it appropriate to deal separately with the conditions in the CSPA and on the ships (see paragraph 129 of the Chamber judgment). As to the first situation, it took the view that the applicants’ allegations about the overcrowding problem and general insalubrity of the CSPA were corroborated by the reports of the Senate’s Special Commission, Amnesty International and the PACE Ad Hoc Sub ‑ Committee, thus finding a violation of Article 3 of the Convention, in spite of the short duration of their confinement – between two and three days (see paragraphs 130-36 of the Chamber judgment). 139. The Chamber reached the opposite conclusion as to the applicants’ detention on the ships. It observed that the applicants had been held on the ships for between six and eight days, and that the allegations of poor conditions had been at least partly contradicted by the decision dated 1 June 2012 of the Palermo preliminary investigations judge, whose findings were in turn based on the observations of a member of parliament who had visited the ships and had talked to some of the migrants. In the Chamber’s view, the fact that the MP had been accompanied by the deputy chief of police and police officers did not, in itself, cast doubt on his independence or on the veracity of his account. The Chamber thus found that there had been no violation of Article 3 under this head (see paragraphs 137-44 of the Chamber judgment). B. The parties’ submissions 1. The applicants (a) The existence of a humanitarian emergency and its consequences 140. The applicants argued that the exceptional situation of humanitarian emergency alleged by the Government (see paragraphs 150 ‑ 51 below) could not justify the treatment of which they were victims, either in terms of domestic legislation or under the Convention. Moreover, the mass arrival of migrants on Lampedusa in 2011 had not been an exceptional situation. A similar influx had occurred before the “Arab Spring” and the decision to restrict the initial accommodation of migrants to the island of Lampedusa had sought to give the public the impression of an “invasion” of Italian territory, to be exploited for political ends. The media and the national and international human rights bodies (the applicants referred in particular to the Amnesty International report, see paragraph 50 above) had established that the crisis situation on the island of Lampedusa had arisen well before 2011. In those circumstances, they argued, it could not be concluded that the situation complained of was primarily the result of the urgency of having to deal with the significant influx of migrants following the “Arab Spring”. 141. In any event, the applicants argued that a State such as Italy had the means necessary to transfer migrants rapidly to other places. The conditions in the Lampedusa CSPA had remained atrocious even after 2011, and the migration crisis had continued in the following years, thus showing the systemic and structural nature of the violation of the migrants’ rights. (b) Conditions in the CSPA at Contrada Imbriacola 142. The applicants alleged that the Lampedusa CSPA was overcrowded. The figures produced by the Government showed that at the relevant time this facility had housed over 1,200 individuals, amounting to three times the centre’s normal capacity (381 spaces), but also well above its maximum capacity in case of necessity (804 spaces). Those figures had in fact indicated the presence of 1,357 individuals on 16 September 2011, 1,325 individuals on 17 September, 1,399 on 18 September, 1,265 on 19 September and 1,017 on 20 September. The conditions of hygiene and sanitation had been unacceptable in the applicants’ view, as shown by photographs and by reports of national and international bodies. In particular, owing to a lack of space in the rooms, the applicants alleged that they had been obliged to sleep outside, directly on the concrete floor, to avoid the stench from the mattresses. In their submission, they had had to eat their meals while sitting on the ground, since the CSPA had no canteen, and the toilets were in an appalling state and were often unusable. Both in the CSPA and on the ships the applicants had experienced mental distress on account of the lack of any information about their legal status and the length of their detention, and had also been unable to communicate with the outside world. Acts of self-harm by migrants held in the CSPA showed the state of tension which prevailed inside the facility. 143. The applicants pointed out that the CSPA was theoretically intended to function as a facility for assistance and initial reception. In their view, that type of centre, which did not comply with the European Prison Rules of 11 January 2006, was unsuitable for extended stays in a situation of deprivation of liberty. In their submission, a violation of Article 3 of the Convention could not be excluded either on account of the nature of the CSPA or in view of the short duration of their detention. The duration in question was only one of the factors to be taken into consideration in assessing whether treatment exceeded the threshold of severity required for it to fall within the scope of Article 3. The Court had previously found violations of Article 3 of the Convention even in the case of very short periods of detention where there were other aggravating factors such as particularly appalling conditions or the vulnerability of the victims (the applicants referred to Brega v. Moldova, no. 52100/08, 20 April 2010; T. and A. v. Turkey, no. 47146/11, 21 October 2014; and Gavrilovici v. Moldova, no. 25464/05, 15 December 2009, concerning periods of forty-eight hours, three days and five days respectively). The applicants argued that the same factors were present in their cases and pointed out that at the material time they had just survived a dangerous crossing of the Mediterranean by night in a rubber dinghy, and that this had weakened them physically and psychologically. They had thus been in a situation of vulnerability, accentuated by the fact that their deprivation of liberty had no legal basis, and their mental distress had increased as a result. 144. The applicants explained that they were not complaining of having been beaten, but about the conditions of their detention in the CSPA. Accordingly, the Government’s argument that they should have produced medical certificates (see paragraph 156 below) was not pertinent. (c) The conditions on the ships Vincent and Audace 145. As to their confinement on the ships, the applicants complained that they had been placed in a seriously overcrowded lounge and that they had only been allowed outside in the open air, on small decks, for a few minutes each day. They had been obliged to wait several hours to use the toilets and meals had been distributed by throwing the food on the floor. 146. The applicants disagreed with the Chamber’s findings and alleged that the psychological stress suffered on the ships had been worse than in the CSPA on Lampedusa. The duration of their deprivation of liberty on the ships had been longer than in the CSPA and had followed on from that initial negative experience. In addition, on the ships the applicants had not received any relevant information or explanation and, according to them, the police had occasionally ill-treated or insulted them. 147. In the applicants’ submission, in view of the nature of the ships (which they described as secluded and inaccessible places), it was for the Government to adduce evidence as to what had happened on board. It would be difficult to imagine that the authorities had been able to guarantee better living conditions than those in the CSPA, which was designed to accommodate migrants. The description about beds with clean sheets, the availability of spare clothing, and the access to private cabins and hot water, was also quite implausible. The Government had merely produced a decision of the Palermo preliminary investigations judge (see paragraphs 24-29 above), which was based on the statements of an MP taken only from a newspaper article and not reiterated at the hearing. It had to be borne in mind, in their view, that the police presence during the visit of the MP called into question the reliability of the migrants’ statements to him as they may have feared reprisals. The Government had failed to produce any document attesting to the services allegedly provided on the ships or any contracts with the companies from which they were leased. Lastly, the Italian authorities had not responded to the appeal by Médecins sans Frontières on 28 September 2011, in which that NGO had expressed its concerns and asked to be allowed to carry out an inspection on the ships. 2. The Government (a) The existence of a humanitarian emergency and its consequences 148. The Government submitted that they had monitored the situation on Lampedusa in the period 2011-2012 and had intervened on a factual and legislative level to coordinate and implement the measures required to provide the migrants with aid and assistance. The active presence on the island of the Office of the United Nations High Commissioner for Refugees (UNHCR), the IOM, Save the Children, the Order of Malta, the Red Cross, Caritas, the ARCI (Associazione Ricreativa e Culturale Italiana) and the Community of Sant’Egidio had been placed within the framework of the “Praesidium Project”, financed by Italy and by the European Union. The representatives of those organisations had had unrestricted access to the migrants’ reception facilities. In addition, on 28 May 2013 the Government had signed a memorandum of agreement with the Terre des hommes Foundation, which provided a service of psychological support at the Lampedusa CSPA. On 4 June 2013 the Ministry of the Interior had signed an agreement with the European Asylum Support Office (EASO) to coordinate the reception arrangements for migrants. Medical assistance had been available at all times to the migrants and, since July 2013, the association Médecins sans Frontières had begun to help train the staff at the CSPA and on the ships responsible for rescue at sea. 149. According to the Government, the rescue of migrants arriving on the Italian coast was a problem not only for Italy but for all the member States of the European Union, which had to establish a proper common policy to deal with it. The local institutions in Lampedusa had financed the construction of new aid and assistance centres (6,440,000 euros (EUR) had been invested to create facilities capable of accommodating 1,700 persons). During his visit on 23 and 24 June 2013, the UNHCR representative for Southern Europe had noted with satisfaction the steps taken by the national and local authorities in order to improve the general situation on the island. 150. The Government explained that in 2011 the massive influx of North African migrants had created a situation of humanitarian emergency in Italy. From 12 February to 31 December 2011, 51,573 nationals of countries outside the European Union (about 46,000 men, 3,000 women and 3,000 children) had landed on the islands of Lampedusa and Linosa. Over 26,000 of those individuals had been Tunisian nationals. That situation was well explained in the report of the PACE Ad Hoc Sub-Committee (see paragraph 49 above), which had also reported on the efforts of the Italian authorities, in cooperation with other organisations, to create the necessary facilities for the reception and assistance of migrants, some of whom were vulnerable individuals. 151. In the Government’s opinion, in view of the many demands on States in situations of humanitarian emergency, the Court had to adopt a “realistic, balanced and legitimate approach” when it came to deciding on the “application of ethical and legal rules”. (b) Conditions at the Contrada Imbriacola CSPA 152. The Government stated that, during the relevant period, the CSPA at Contrada Imbriacola had been fully operational and had had the necessary human and material resources to provide aid and initial accommodation to migrants. In addition to the director and two deputy directors, the centre employed ninety-nine “social operators” and cleaning staff, three social workers, three psychologists, eight interpreters and cultural mediators, eight administrative staff and three division managers responsible for supervising activities in the facility. Three doctors and three nurses provided medical assistance in a temporary unit. According to the results of an inspection carried out on 2 April 2011 by the Palermo health services, the conditions of hygiene were satisfactory, and so was the quality and quantity of the food provided. A further inspection immediately after the fire of 20 September 2011 reported that drinking water was provided in bottles and that the canteen was serving meals. Before being transferred to the Lampedusa CSPA, the applicants had undergone a medical examination which showed that they were in good health. Furthermore, minors and particularly vulnerable individuals had been separated from the other migrants and taken to the centre of Loran (see § 31 of the PACE report of 30 September 2011, cited in paragraph 49 above). 153. At the hearing before the Court, the Government pointed out that the migrants accommodated in the Contrada Imbriacola CSPA had been able: (a) to move around freely inside the facility; (b) to have access to all the services available (medical assistance, clothing, food, water and sanitary facilities); (c) to communicate with the outside world and make purchases (on their arrival they had received a telephone card worth EUR 15 and vouchers to be used in the centre); and (d) to have contact with representatives of humanitarian organisations and lawyers. In the Government’s view the centre, which could accommodate up to 1,000 individuals, was not overcrowded. At the hearing before the Court the Government observed that during the applicants’ stay there, 917 migrants had been accommodated in the CSPA at Contrada Imbriacola. 154. In the light of the foregoing, the Government submitted that the applicants had not been subjected to any inhuman or degrading treatment, “because they were not considered to be under arrest or in custody but were simply being assisted pending their return to Tunisia”. The applicants themselves had acknowledged that under Italian law the CSPA was designed for reception, and they had not claimed to have been physically injured there or otherwise ill-treated by the police or the centre’s staff. The Chamber had not duly taken account of the criminal offences which had required the intervention of the local authorities to rescue the migrants and ensure their safety. The Government further emphasised that the applicants had only remained on Lampedusa for a short period. (c) Conditions on the ships Vincent and Audace 155. The Government noted that, in his decision of 1 June 2012 (see paragraphs 24-29 above), the Palermo preliminary investigations judge had found that the measures taken to cope with the presence of migrants on Lampedusa had been compliant with national and international law, and had been adopted with the requisite promptness in a situation of emergency. The judge had also taken the view that the reception conditions on the ships Audace and Vincent had been satisfactory. 156. The Government lastly challenged the applicants’ allegations of ill ‑ treatment by the police, pointing out that they were not based on any evidence such as medical certificates. C. Third-party intervention 157. The Coordination Française pour le droit d’asile, a coalition which submitted written comments on behalf of four associations (Avocats pour la défense des droits des étrangers, Groupe d’information et de soutien des immigré.e.s (GISTI), Ligue des droits de l’homme et du citoyen and the International Federation for Human Rights (Fédération internationale des ligues des droits de l’Homme – FIDH)), asked the Grand Chamber to “solemnly uphold” the Chamber judgment. It submitted that it was necessary to take into account the vulnerability of the migrants, and particularly those who had endured a sea crossing, in assessing the existence of treatment contrary to Article 3 of the Convention. It acknowledged that the Court had rarely found a violation of that Article in cases of short-term detention, and only in the presence of aggravating circumstances. However, the vulnerability of the migrants, combined with conditions of detention that impaired their human dignity, was sufficient for a finding that the level of severity required by Article 3 had been reached. This had been confirmed by the case-law developed by the Court in the case of M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011), by the work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and by the observations of the UNHCR. Moreover, conditions of detention were a major factor in the deterioration of the mental health of migrants. D. The Court’s assessment 1. Principles established in the Court’s case-law 158. 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 v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Labita, cited above, § 119; Gäfgen v. Germany [GC], no. 22978/05, § 87, ECHR 2010; 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, inter alia, Chahal, cited above, § 79; 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). (a) Whether the treatment falls within Article 3 of the Convention 159. Nevertheless, according to the Court’s well-established 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 that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Ireland v. the United Kingdom, cited above, § 162; Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001 ‑ VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002 ‑ IX; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 ‑ IX; Gäfgen, cited above, § 88; El-Masri, cited above, § 196; Naumenko v. Ukraine, no. 42023/98, § 108, 10 February 2004; and Svinarenko and Slyadnev, cited above, § 114). 160. In order to determine whether the threshold of severity has been reached, the Court also takes other factors into consideration, in particular: (a) The purpose for which the ill-treatment was inflicted, together with the intention or motivation behind it (see Bouyid, cited above, § 86), although the absence of an intention to humiliate or debase the victim cannot conclusively rule out its characterisation as “degrading” and therefore prohibited by Article 3 (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999 ‑ IX; Peers v. Greece, no. 28524/95, §§ 68 and 74, ECHR 2001 ‑ III; Price, cited above, § 24; and Svinarenko and Slyadnev, cited above, § 114). (b) The context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (see Bouyid, cited above, § 86). (c) Whether the victim is in a vulnerable situation, which is normally the case for persons deprived of their liberty (see, in respect of police custody, Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000 ‑ VII, and Bouyid, cited above, § 83 in fine ), but there is an inevitable element of suffering and humiliation involved in custodial measures and this as such, in itself, will not entail a violation of Article 3. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 ‑ XI, and Rahimi v. Greece, no. 8687/08, § 60, 5 April 2011). (b) Protection of vulnerable persons and detention of potential immigrants 161. The Court would emphasise that Article 3 taken in conjunction with Article 1 of the Convention must enable effective protection to be provided, particularly to vulnerable members of society, and should include reasonable measures to prevent ill-treatment of which the authorities have or ought to have knowledge (see Z. and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 53, ECHR 2006-XI). In this connection, the Court must examine whether or not the impugned regulations and practices, and in particular the manner in which they were implemented in the instant case, were defective to the point of constituting a violation of the respondent State’s positive obligations under Article 3 of the Convention (see Mubilanzila Mayeka et Kaniki Mitunga, cited above, § 54, and Rahimi, cited above, § 62). 162. While States are entitled to detain potential immigrants under their “undeniable ... right to control aliens’ entry into and residence in their territory” (see Amuur, cited above, § 41), this right must be exercised in accordance with the provisions of the Convention (see Mahdid and Haddar v. Austria (dec.), no. 74762/01, 8 December 2005; Kanagaratnam and Others v. Belgium, no. 15297/09, § 80, 13 December 2011; and Sharifi and Others v. Italy and Greece, no. 16643/09, § 188, 21 October 2014). The Court must have regard to the particular situation of these persons when reviewing the manner in which the detention order was implemented against the yardstick of the Convention provisions (see Riad and Idiab v. Belgium, nos. 29787/03 and 29810/03, § 100, 24 January 2008; M.S.S. v. Belgium and Greece, cited above, § 217; and Rahimi, cited above, § 61). (c) Conditions of detention in general and prison overcrowding in particular 163. When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). In particular, the length of the period during which the applicant was detained in the impugned conditions will be a major factor (see Kalashnikov v. Russia no. 47095/99, § 102, ECHR 2002-VI; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; Alver v. Estonia, no. 64812/01, § 50, 8 November 2005; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 142, 10 January 2012). 164. Where overcrowding reaches a certain level, the lack of space in an institution may constitute the key factor to be taken into account in assessing the conformity of a given situation with Article 3 (see, in respect of prisons, Karalevičius v. Lithuania, no. 53254/99, § 39, 7 April 2005). Extreme lack of space in prison cells weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” within the meaning of Article 3 of the Convention (see Mursič v. Croatia [GC], no. 7334/13, § 104, 20 October 2016). 165. Thus, in examining cases of severe overcrowding, the Court has found that this aspect sufficed in itself to entail a violation of Article 3 of the Convention. As a general rule, although the space considered desirable by the CPT for collective cells is 4 sq. m, the personal space available to the applicants in the relevant cases was less than 3 sq. m (see Kadikis v. Latvia, no. 62393/00, § 55, 4 May 2006; Andrey Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Sulejmanovic v. Italy, no. 22635/03, § 43, 16 July 2009; Ananyev and Others, cited above, §§ 144-45; and Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, § 68, 8 January 2013). 166. The Court has recently confirmed that the requirement of 3 sq. m of floor surface per detainee (including space occupied by furniture but not counting the in-cell sanitary facility) in multi-occupancy accommodation should be maintained as the relevant minimum standard for its assessment under Article 3 of the Convention (see Mursič, cited above, §§ 110 and 114). It also stated that a weighty but not irrebuttable presumption of a violation of Article 3 arose when the personal space available to a detainee fell below 3 sq. m in multi-occupancy accommodation. The presumption could be rebutted in particular by demonstrating that the cumulative effects of the other aspects of the conditions of detention compensated for the scarce allocation of personal space. In that connection the Court takes into account such factors as the length and extent of the restriction, the degree of freedom of movement and the adequacy of out-of-cell activities, as well as whether or not the conditions of detention in the particular facility are generally decent (ibid., §§ 122-38). 167. However, in cases where the overcrowding was not significant enough to raise, in itself, an issue under Article 3, the Court has noted that other aspects of detention conditions had to be taken into account in examining compliance with that provision. Those aspects include the possibility of using toilets with respect for privacy, ventilation, access to natural air and light, quality of heating and compliance with basic hygiene requirements (see also the points set out in the European Prison Rules adopted by the Committee of Ministers, as cited in paragraph 32 of the judgment in Torreggiani and Others, cited above). As the Court found in Mursič (cited above, § 139), in cases where a prison cell measuring in the range of 3 to 4 sq. m of personal space per inmate is at issue, the space factor remains a weighty consideration in the Court’s assessment of the adequacy of the conditions of detention. Thus, in such cases, the Court has found a violation of Article 3 where the lack of space went together with other poor material conditions of detention such as: a lack of ventilation and light (see Torreggiani and Others, cited above, § 69; see also Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007; Vlasov v. Russia, no. 78146/01, § 84, 12 June 2008; and Moiseyev v. Russia, no. 62936/00, §§ 124-27, 9 October 2008); limited access to outdoor exercise (see István Gábor Kovács v. Hungary, no. 15707/10, § 26, 17 January 2012) or a total lack of privacy in the cell (see Novoselov v. Russia, no. 66460/01, §§ 32 and 40-43, 2 June 2005; Khudoyorov v. Russia, no. 6847/02, §§ 106-07, ECHR 2005-X (extracts); and Belevitskiy v. Russia, no. 72967/01, §§ 73-79, 1 March 2007). (d) Evidence of ill-treatment 168. Allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” and 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, cited above, § 161 in fine; Labita, cited above, § 121; Jalloh, cited above, § 67; Ramirez Sanchez v. France [GC], no. 59450/00, § 117, ECHR 2006 ‑ IX; Gäfgen, cited above, § 92; and Bouyid, cited above, § 82). 169. Even if there is no evidence of actual bodily injury or intense physical or mental suffering, 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 thus fall within Article 3 (see, among other authorities, Gäfgen, cited above, § 89; Vasyukov v. Russia, no. 2974/05, § 59, 5 April 2011; Georgia v. Russia (I), cited above, § 192; and Svinarenko and Slyadnev, cited above, § 114). It may well suffice for the victim to be humiliated in his own eyes, even if not in the eyes of others (see, among other authorities, Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; M.S.S. v. Belgium and Greece, cited above, § 220; and Bouyid, cited above, § 87). 2. Application of the above-mentioned principles in cases comparable to that of the applicants 170. The Court has already had occasion to apply the above ‑ mentioned principles to cases that are comparable to that of the applicants, concerning in particular the conditions in which would-be immigrants and asylum-seekers were held in reception or detention centres. Two of those cases have been examined by the Grand Chamber. 171. In its judgment in M.S.S. v. Belgium and Greece (cited above, §§ 223-34), the Grand Chamber examined the detention of an Afghan asylum-seeker at Athens international airport for four days in June 2009 and for one week in August 2009. It found that there had been a violation of Article 3 of the Convention, referring to cases of ill-treatment by police officers reported by the CPT and to the conditions of detention as described by a number of international organisations and regarded as “unacceptable”. In particular, the detainees had been obliged to drink water from the toilets; there were 145 detainees in a 110 sq. m space; there was only one bed for fourteen to seventeen people; there was a lack of sufficient ventilation and the cells were unbearably hot; detainees’ access to the toilets was severely restricted and they had to urinate in plastic bottles; there was no soap or toilet paper in any sector; sanitary facilities were dirty and had no doors; and detainees were deprived of outdoor exercise. 172. The case of Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 93 ‑ 122, ECHR 2014) concerned eight Afghan migrants who alleged that in the event of their removal to Italy they would have been victims of inhuman or degrading treatment relating to the existence of “systemic deficiencies” in the reception facilities for asylum-seekers in that country. The Grand Chamber examined the general reception system for asylum-seekers in Italy and noted deficiencies in terms of the insufficient size of reception centres and the poor living conditions in the facilities available. In particular, there were long waiting lists for access to the centres, and the capacity of the facilities did not seem capable of absorbing the greater part of the demand for accommodation. While taking the view that the situation in Italy could “in no way be compared to the situation in Greece at the time of the M.S.S. judgment” and that it did not in itself act as a bar to all removals of asylum-seekers to that country, the Court nevertheless took the view that “the possibility that a significant number of asylum seekers [might] be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, [could] not be dismissed as unfounded”. Having regard to the fact that the applicants were two adults accompanied by their six minor children, the Court found that “were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention”. 173. The conditions of detention of migrants or travellers have also given rise to a number of Chamber judgments. In S.D. v. Greece (no. 53541/07, §§ 49-54, 11 June 2009) the Court found that to confine an asylum-seeker for two months in a prefabricated unit, without any possibility of going outside or using the telephone, and without having clean sheets or sufficient toiletries, constituted degrading treatment for the purposes of Article 3 of the Convention. Similarly, a detention period of six days, in a confined space, without any possibility of exercise or any leisure area, and where the detainees slept on dirty mattresses and had no free access to toilets, was unacceptable under Article 3. 174. Tabesh v. Greece (no. 8256/07, §§ 38-44, 26 November 2009) concerned the detention of an asylum-seeker for three months, pending the application of an administrative measure, on police premises without any possibility of leisure activity or appropriate meals. The Court held that this constituted degrading treatment. It reached a similar conclusion in A.A. v. Greece (no. 12186/08, §§ 57-65, 22 July 2010), which concerned the three-month detention of an asylum-seeker in an overcrowded facility where the cleanliness and conditions of hygiene were atrocious, where no facility was available for leisure or meals, where the poor state of repair of the bathrooms made them virtually unusable and where the detainees had to sleep in dirty and cramped conditions (see, to the same effect, C.D. and Others v. Greece, nos. 33441/10, 33468/10 and 33476/10, §§ 49-54, 19 December 2013, concerning the detention of twelve migrants for periods of between forty-five days and two months and twenty-five days; F.H. v. Greece, no. 78456/11, §§ 98-103, 31 July 2014, concerning the detention pending removal of an Iranian migrant in four detention centres for a total duration of six months; and Ha.A. v. Greece, no. 58387/11, §§ 26-31, 21 April 2016, where the Court noted that reliable sources had reported on the severe lack of space, 100 detainees having been “crammed” into an area of 35 sq. m.; see also Efremidze v. Greece, no. 33225/08, §§ 36 ‑ 42, 21 June 2011; R.U. v. Greece, no. 2237/08, §§ 62-64, 7 June 2011; A.F. v. Greece, no. 53709/11, §§ 71-80, 13 June 2013; and B.M. v. Greece, no. 53608/11, §§ 67-70, 19 December 2013). 175. The case of Rahimi (cited above, §§ 63-86) concerned the detention pending deportation of an Afghan migrant, who at the time was 15 years old, in a centre for illegal immigrants at Pagani, on the island of Lesbos. The Court found a violation of Article 3 of the Convention, observing as follows: that the applicant was an unaccompanied minor; that his allegations about serious problems of overcrowding (number of detainees four times higher than capacity), poor hygiene and lack of contact with the outside world had been corroborated by the reports of the Greek Ombudsman, the CPT and a number of international organisations; that even though the applicant had only been detained for a very limited period of two days, on account of his age and personal situation he was extremely vulnerable; and that the detention conditions were so severe that they undermined the very essence of human dignity. 176. It should also be pointed out that in the case of T. and A. v. Turkey (cited above, §§ 91-99) the Court found that the detention of a British national at Istanbul airport for three days was incompatible with Article 3 of the Convention. The Court observed that the first applicant had been confined in personal space of at most 2.3 sq. m and as little as 1.23 sq. m, and that there was only one sofa-bed on which the inmates took turns to sleep. 177. The Court, however, found no violation of Article 3 of the Convention in Aarabi v. Greece (no. 39766/09, §§ 42-51, 2 April 2015), concerning the detention pending removal of a Lebanese migrant aged 17 and ten months at the relevant time, which had taken place: from 11 to 13 July 2009 on coastguard premises on the island of Chios; from 14 to 26 July 2009 at the Mersinidi detention centre; from 27 to 30 July 2009 at the Tychero detention centre; and on 30 and 31 July 2009 on police premises in Thessaloniki. The Court noted in particular that the Greek authorities could not reasonably have known that the applicant was a minor at the time of his arrest and therefore his complaints had necessarily been examined as if they had been raised by an adult; that the periods of detention in the Tychero centre and on the coastguard and police premises had lasted only two or three days, and that no other aggravating factor had been put forward by the applicant (there were no CPT findings about the Tychero detention centre); that the applicant had spent thirteen days in the Mersinidi detention centre, in respect of which there were no reports from national or international bodies for the relevant period; that this centre had been mentioned in an Amnesty International report covering a subsequent period, referring to a lack of toiletries and the fact that some inmates slept on mattresses placed on the bare floor, without however reporting any general hygiene problems; that even though the Government had acknowledged that Mersinidi had exceeded its accommodation capacity, there was no evidence that the applicant had had less than 3 sq. m of personal space in his cell; that on 26 July 2009 the authorities had decided to transfer a certain number of individuals, including the applicant, to another detention centre, thus showing that they had sought in a timely manner to improve the detention conditions endure by the applicant; and that following his visit to Greece in October 2010, the UN Special Rapporteur on torture and other cruel, inhuman or degrading punishment or treatment had described the detention conditions in Mersinidi as adequate. 3. Application of those principles in the present case (a) The existence of a humanitarian emergency and its consequences 178. The Court finds it necessary to begin by addressing the Government’s argument that it should take due account of the context of humanitarian emergency in which the events in question had taken place (see paragraph 151 above). 179. In this connection the Court, like the Chamber, cannot but take note of the major migration crisis that unfolded in 2011 following events related to the “Arab Spring”. As the PACE Ad Hoc Sub-Committee noted on 30 September 2011 (see, in particular, §§ 9-13 of its report, cited in paragraph 49 above), following uprisings in Tunisia and Libya there was a fresh wave of arrivals by boat, as a result of which Italy declared a state of humanitarian emergency on the island of Lampedusa and appealed for solidarity from the member States of the European Union. By 21 September 2011, when the applicants were on the island, 55,298 persons had arrived there by sea. As indicated by the Government (see paragraph 150 above), between 12 February and 31 December 2011, 51,573 nationals of third States (of whom about 46,000 were men and 26,000 were Tunisian nationals) landed on the islands of Lampedusa and Linosa. The arrival en masse of North African migrants undoubtedly created organisational, logistical and structural difficulties for the Italian authorities in view of the combination of requirements to be met, as they had to rescue certain vessels at sea, to receive and accommodate individuals arriving on Italian soil, and to take care of those in particularly vulnerable situations. The Court would observe in this connection that according to the data supplied by the Government (ibid.) and not disputed by the applicants, there were some 3,000 women and 3,000 children among the migrants who arrived during the period in question. 180. In view of the significant number of factors, whether political, economic or social, which gave rise to such a major migration crisis and taking account of the challenges facing the Italian authorities, the Court cannot agree with the applicants’ view (see paragraph 140 above) that the situation in 2011 was not exceptional. An excessive burden might be imposed on the national authorities if they were required to interpret those numerous factors precisely and to foresee the scale and timeframe of an influx of migrants. In that connection it should be observed that the significant increase of arrivals by sea in 2011 compared to previous years was confirmed by the report of the PACE Ad Hoc Sub-Committee. According to that report, 15,527, 18,047, 11,749 and 31,252 migrants had arrived on Lampedusa in 2005, 2006, 2007 and 2008 respectively. The number of arrivals had diminished in 2009 and 2010, with, respectively, 2,947 and 459 individuals (see, in particular, §§ 9 and 10 of the report, cited in paragraph 49 above). That reduction had been significant enough for the authorities to close the reception centres on Lampedusa (see, in particular, ibid., §§ 10 and 51). When those data are compared with the figures for the period from 12 February to 31 December 2011 (see paragraphs 150 and 179 above), which saw 51,573 nationals from third countries arriving on Lampedusa and Linosa, it can be appreciated that the year 2011 was marked by a very significant increase in the number of migrants arriving by sea from North African countries on the Italian islands to the south of Sicily. 181. Neither can the Court criticise, in itself, the decision to concentrate the initial reception of the migrants on Lampedusa. As a result of its geographical situation, that was where most rudimentary vessels would arrive and it was often necessary to carry out rescues at sea around the island in order to protect the life and health of the migrants. It was therefore not unreasonable, at the initial stage, to transfer the survivors from the Mediterranean crossing to the closest reception facility, namely the CSPA at Contrada Imbriacola. 182. Admittedly, as noted by the Chamber, the accommodation capacity available in Lampedusa was both insufficient to receive such a large number of new arrivals and ill-suited to stays of several days. It is also true that in addition to that general situation there were some specific problems just after the applicants’ arrival. On 20 September a revolt broke out among the migrants being held at the Contrada Imbriacola CSPA and the premises were gutted by an arson attack (see paragraphs 14 and 26 above). On the next day, about 1,800 migrants started protest marches through the island’s streets (see paragraph 14 above) and clashes occurred in the port of Lampedusa between the local community and a group of aliens threatening to explode gas canisters. Acts of self-harm and vandalism were also perpetrated (see paragraphs 26 and 28 above). Those incidents contributed to exacerbating the existing difficulties and creating a climate of heightened tension. 183. The foregoing details show that the State was confronted with many problems as a result of the arrival of exceptionally high numbers of migrants and that during this period the Italian authorities were burdened with a large variety of tasks, as they had to ensure the welfare of both the migrants and the local people and to maintain law and order. 184. 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, an increasing influx of migrants cannot absolve a State of its obligations under that provision (see M.S.S. v. Belgium and Greece, cited above, § 223; see also Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, §§ 122 and 176, ECHR 2012), which requires that persons deprived of their liberty must be guaranteed conditions that are compatible with respect for their human dignity. In this connection the Court would also point out that in accordance with its case-law as cited in paragraph 160 above, even treatment which is inflicted without the intention of humiliating or degrading the victim, and which stems, for example, from objective difficulties related to a migrant crisis, may entail a violation of Article 3 of the Convention. 185. While the constraints inherent in such a crisis cannot, in themselves, be used to justify a breach of Article 3, the Court is of the view that it would certainly be artificial to examine the facts of the case without considering the general context in which those facts arose. In its assessment, the Court will thus bear in mind, together with other factors, that the undeniable difficulties and inconveniences endured by the applicants stemmed to a significant extent from the situation of extreme difficulty confronting the Italian authorities at the relevant time. 186. Like the Chamber, the Court is of the view that, under Article 3 of the Convention, it is appropriate to examine separately the two situations at issue, namely the reception conditions in the Contrada Imbriacola CSPA, on the one hand, and those on the ships Vincent and Audace, on the other. (b) Conditions in the Contrada Imbriacola CSPA 187. The Court would begin by observing that it is called upon to determine whether the conditions of the applicants’ detention in the Lampedusa CSPA can be regarded as “inhuman or degrading treatment” within the meaning of Article 3 of the Convention. For that purpose a number of factors must be taken into consideration. 188. First, at the time of the applicants’ arrival, the conditions in the CSPA were far from ideal. The applicants’ allegations about the general state of the centre, and in particular the problems of overcrowding, poor hygiene and lack of contact with the outside world, are confirmed by the reports of the Senate’s Special Commission and Amnesty International (see paragraphs 35 and 50 above). The Special Commission, an institution of the respondent State itself, reported that rooms accommodating up to twenty-five persons contained four-tier bunk beds placed side by side, that foam-rubber mattresses, many of them torn, were placed along corridors and outside landings, and that in many rooms there were no light bulbs. In toilets and showers privacy was ensured only by cloth or plastic curtains placed in an improvised manner, water pipes were sometimes blocked or leaking, the smell from the toilets pervaded the whole area, and rainwater carried dampness and dirt into the living quarters. Amnesty International also reported on severe overcrowding, a general lack of hygiene and toilets which were smelly and unusable. 189. The Chamber rightly emphasised these problems. It cannot, however, be overlooked that the Senate’s Special Commission visited the Contrada Imbriacola CSPA on 11 February 2009 (see paragraph 35 above), about two years and seven months before the applicants’ arrival. The Court does not find it established, therefore, that the conditions described by the Special Commission still obtained in September 2011 at the time of the applicants’ arrival. 190. Information from a later date is available in a report by the PACE Ad Hoc Sub-Committee, which carried out a fact-finding mission on Lampedusa on 23 and 24 May 2011, less than four months before the applicants’ arrival (see paragraph 49 above). It is true that the Ad Hoc Sub ‑ Committee expressed its concerns about the conditions of hygiene as a result of overcrowding in the CSPA, observing that the facility was ill ‑ suited to stays of several days (see, in particular, §§ 30 and 48 of the report). That report nevertheless indicates the following points in particular (ibid., §§ 28, 29, 32 and 47): (a) The associations participating in the “Praesidium Project” (UNHCR, the IOM, the Red Cross and Save the Children) were authorised to maintain a permanent presence inside the reception centre, making interpreters and cultural mediators available. (b) All those participants were working together on good terms, endeavouring to coordinate their efforts, with the shared priority of saving lives in sea rescue operations, doing everything possible to receive new arrivals in decent conditions and then assisting in rapidly transferring them to centres elsewhere in Italy. (c) Reception conditions were decent although very basic (while rooms were full of mattresses placed side by side directly on the ground, the buildings – prefabricated units – were well ventilated because the rooms had windows; and the sanitary facilities appeared sufficient when the centre was operating at its normal capacity). (d) Anyone wishing to be examined by a doctor could be, and no request to that effect was refused. (e) A regular inspection of the sanitary facilities and food at the centres was carried out by the Head of the Palermo Health Unit. 191. In the light of that information the Court takes the view that the conditions in the Lampedusa CSPA cannot be compared to those which, in the judgments cited in paragraphs 171 and 173-75 above, justified finding a violation of Article 3 of the Convention. 192. As to the alleged overcrowding in the CSPA, the Court observes that, according to the applicants, the maximum capacity in the Contrada Imbriacola facility was 804 (see paragraph 142 above), whereas the Government submitted that it could accommodate up to about 1,000 (see paragraph 153 above). The applicants added that on 16, 17, 18, 19 and 20 September, the centre housed 1,357, 1,325, 1,399, 1,265 and 1,017 migrants respectively. Those figures do not quite correspond to the indications provided by the Government, which at the hearing before the Court stated that at the time of the applicants’ stay there had been 917 migrants in the Contrada Imbriacola CSPA. 193. In those circumstances, the Court is not in a position to determine the precise number of persons being held there at the material time (see, mutatis mutandis, Sharifi and Others, cited above, § 189). It would merely observe that if the applicants are correct in their indication of the number of persons held and the capacity of the CSPA, the centre must have exceeded its limit (804 persons) by a percentage of between 15% and 75%. This means that the applicants must clearly have had to cope with the problems resulting from a degree of overcrowding. However, their situation cannot be compared to that of individuals detained in a prison, a cell or a confined space (see, in particular, the case-law cited in paragraphs 163-67, 173 and 176 above). The applicants did not dispute the Government’s assertions that the migrants held in the Contrada Imbriacola CSPA could move around freely within the confines of the facility, communicate by telephone with the outside world, make purchases and contact representatives of humanitarian organisations and lawyers (see paragraph 153 above). Even though the number of square metres per person in the centre’s rooms has not been established, the Court finds that the freedom of movement enjoyed by the applicants in the CSPA must have alleviated in part, or even to a significant extent, the constraints caused by the fact that the centre’s maximum capacity was exceeded. 194. As the Chamber rightly pointed out, when they were held at the Lampedusa CSPA, the applicants were weakened physically and psychologically because they had just made a dangerous crossing of the Mediterranean. Nevertheless, the applicants, who were not asylum ‑ seekers, did not have the specific vulnerability inherent in that status, and did not claim to have endured traumatic experiences in their country of origin (contrast M.S.S. v. Belgium and Greece, cited above, § 232). In addition, they belonged neither to the category of elderly persons nor to that of minors (on the subject of which, see, among other authorities, Popov v. France, nos. 39472/07 and 39474/07, §§ 90-103, 19 January 2012). At the time of the events they were aged between 23 and 28 and did not claim to be suffering from any particular medical condition. Nor did they complain of any lack of medical care in the centre. 195. The Court further notes that the applicants were placed in the Contrada Imbriacola CSPA on 17 and 18 September 2011 respectively (see paragraphs 11 and 12 above), and that they were held there until 20 September, when, following a fire, they were transferred to a sports complex on Lampedusa (see paragraph 14 above). Their stay in that facility thus lasted three and four days respectively. As the Chamber pointed out, the applicants thus stayed in the CSPA for only a short period. Their limited contact with the outside world could not therefore have had serious consequences for their personal situations (see, mutatis mutandis, Rahimi, cited above, § 84). 196. In certain cases the Court has found violations of Article 3 in spite of the short duration of the deprivation of liberty in question (see, in particular, the three judgments cited by the applicants as referred to in paragraph 143 above). However, the present case can be distinguished in various respects from those judgments. In particular, in the Brega judgment (cited above, §§ 39-43), a forty-eight-hour period of detention had been combined with wrongful arrest, a renal colic attack subsequently suffered by the applicant, a delay in medical assistance, a lack of bedding, and a low temperature in the cell. In the case of T. and A. v. Turkey (cited above, §§ 91-99), the personal space available to the first applicant for the three days of her detention had been limited (between 2.3 and 1.23 sq. m) and there had been only one sofa-bed on which the inmates took turns to sleep. Lastly, the Gavrilovici judgment (cited above, §§ 41-44) concerned a longer period of detention than that endured by the present applicants (five days), with the aggravating factors that the four inmates were obliged to sleep on a wooden platform about 1.8 m wide, that there was no heating or toilet in the cell and that the cells in the Ştefan-Vodă police station had subsequently been closed because they were held to be incompatible with any form of detention. The Court also has regard to the cases of Koktysh v. Ukraine (no. 43707/07, §§ 22 and 91-95, 10 December 2009), concerning detention periods of ten and four days in a very overcrowded cell, where prisoners had to take it in turns to sleep, in a prison where the conditions had been described as “atrocious”, and Căşuneanu v. Romania (no. 22018/10, §§ 60 ‑ 62, 16 April 2013), concerning a five-day period of detention in circumstances of overcrowding, poor hygiene, dirtiness, and a lack of privacy and outdoor exercise. 197. That being said, the Court cannot overlook the fact, pointed out both by the PACE Ad Hoc Sub-Committee and by Amnesty International (see paragraphs 49-50 above), that the Lampedusa CSPA was not suited to stays of more than a few days. As that facility was designed more as a transit centre than a detention centre, the authorities were under an obligation to take steps to find other satisfactory reception facilities with enough space and to transfer a sufficient number of migrants to those facilities. However, in the present case the Court cannot address the question whether that obligation was fulfilled, because only two days after the arrival of the last two applicants, on 20 September 2011, a violent revolt broke out among the migrants and the Lampedusa CSPA was gutted by fire (see paragraph 14 above). It cannot be presumed that the Italian authorities remained inactive and negligent, nor can it be maintained that the transfer of the migrants should have been organised and carried out in less than two or three days. In this connection it is noteworthy that in the Aarabi case (cited above, § 50) the Court found that the decision of the domestic authorities to transfer a certain number of individuals, including the applicant, to another detention centre had demonstrated their willingness to improve the applicant’s conditions of detention in a timely manner. The relevant decision in Aarabi, however, had been taken thirteen days after the applicant’s placement in the Mersinidi centre. 198. The Court further observes that the applicants did not claim that they had been deliberately ill-treated by the authorities in the centre, that the food or water had been insufficient or that the climate at the time had affected them negatively when they had had to sleep outside. 199. Having regard to all the factors set out above, taken as a whole, and in the light of the specific circumstances of the applicants’ case, the Court finds that the treatment they complained of does not exceed the level of severity required for it to fall within Article 3 of the Convention. 200. It follows, in the present case, that the conditions in which the applicants were held at the Contrada Imbriacola CSPA did not constitute inhuman or degrading treatment and that there has therefore been no violation of Article 3 of the Convention. 201. Finally, the Court has also taken note of the Government’s statements (see paragraph 149 above) that significant amounts have been invested in order to set up new reception facilities, and that during his visit on 23 and 24 June 2013 the UNHCR representative for Southern Europe noted with satisfaction the steps taken by the national and local authorities in order to improve the general situation on the island of Lampedusa (see, mutatis mutandis, Aarabi, § 50 in fine ). (c) The conditions on the ships Vincent and Audace 202. As regards the conditions on the two ships, the Court notes that the first applicant was placed on the Vincent, with some 190 others, while the second and third applicants were transferred to the Audace, which held about 150 persons (see paragraph 15 above). Their confinement on the ships began on 22 September 2011 and ended on 29 or 27 September 2011, depending on the applicant; it thus lasted about seven days for the first applicant and about five days for the second and third applicants (see paragraph 17 above). 203. The Court has examined the applicants’ allegations that, on board the ships, they were grouped together in an overcrowded lounge area, that they could only go outside onto small decks for a few minutes every day, and that they had to sleep on the floor and wait several hours to use the toilets; also that they were not allowed access to the cabins, that food was distributed by being thrown on the floor, that they were occasionally insulted and ill-treated by the police and that they did not receive any information from the authorities (see paragraphs 16, 145 and 146 above). 204. The Court notes that those allegations are not based on any objective reports, merely their own testimony. The applicants argued that the absence of any corroborating material could be explained by the nature of the ships, which they described as isolated and inaccessible places, and that in those circumstances it was for the Government to provide evidence that the requirements of Article 3 had been met (see paragraph 147 above). 205. On the latter point, the Court has held that 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 of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Gäfgen, cited above, § 92; compare also Tomasi v. France, 27 August 1992, § 110, Series A no. 241 ‑ A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; Aksoy v. Turkey, 18 December 1996, § 61, Reports 1996-VI; and Selmouni, cited above, § 87). In addition, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, strong presumptions of fact will arise in respect of injuries occurring during such detention. The burden of proof is then on the Government to provide a satisfactory and convincing explanation by producing evidence establishing facts which cast doubt on the account of events given by the victim (see Salman, cited above, § 100; Rivas v. France, no. 59584/00, § 38, 1 April 2004; Turan Çakır v. Belgium, no. 44256/06, § 54, 10 March 2009; and Mete and Others v. Turkey, no. 294/08, § 112, 4 October 2012). In the absence of any such explanation, the Court can draw inferences which may be unfavourable for the Government (see, among other authorities, El ‑ Masri, cited above, § 152). This is justified by the fact that persons in the hands of the police or a comparable authority are in a vulnerable position and the authorities are under a duty to protect them (see, Bouyid, cited above, §§ 83-84; see also, in respect of persons in police custody, Salman, cited above, § 99). 206. In the light of that case-law, the burden of proof in this area may be reversed where allegations of ill-treatment at the hands of the police or other similar agents of the State are arguable and based on corroborating factors, such as the existence of injuries of unknown and unexplained origin. The Court observes, however, that such factors are totally absent in the present case, as the applicants have failed to produce any documents certifying any signs or after-effects of the alleged ill-treatment or any third-party testimony confirming their version of the facts. 207. In any event, the Court cannot but attach decisive weight to the fact that the Government adduced before it a judicial decision contradicting the applicants’ account, namely that of the Palermo preliminary investigations judge dated 1 June 2012. That decision indicates (see paragraph 27 above) that the migrants were provided with medical assistance, hot water, electricity, meals and hot drinks. In addition, according to a press agency note dated 25 September 2011 and cited in the decision, a member of parliament, T.R., accompanied by the deputy chief of police and by police officers, boarded the vessels in Palermo harbour and spoke to some of the migrants. The MP reported that the migrants were in good health, that they had assistance and that they were sleeping in cabins with bedding or on reclining seats. They had access to prayer rooms, the Civil Protection Authority had made clothing available to them and the food was satisfactory (pasta, chicken, vegetables, fruit and water). 208. The Court takes the view that there is no reason for it to question the impartiality of an independent judge such as the Palermo preliminary investigations judge. To the extent that the applicants criticised the judge’s decision on the ground that it was based on the statements of an MP to the press and not reiterated at the hearing, and that the police had been present during the MP’s visit (see paragraph 147 above), the Court reiterates that where allegations are made under Article 3 of the Convention it is prepared to conduct a thorough examination of the findings of the national courts, and that in doing so it may take account of the quality of the domestic proceedings and any possible flaws in the decision-making process (see Denisenko and Bogdanchikov v. Russia, no. 3811/02, § 83, 12 February 2009, and Bouyid, cited above, § 85). Nevertheless, sound evidence alone, not mere hypothetical speculation, is necessary to call into question the assessment of the facts by an independent domestic court. The applicants have not, however, produced any evidence capable of showing that the press inaccurately reported the MP’s statements. In addition, the police presence in the detention centre cannot be regarded as unusual and cannot, in itself, give rise to objectively justified doubts as to the reliability of the results of a visit to or inspection of such a facility. The Court would indicate its agreement with the Chamber’s findings that the fact that the MP was accompanied by the deputy chief of police and police officers did not in itself mean that the MP’s independence or the veracity of his account had to be called into question. 209. As to the applicants’ allegations about the appeal made to the Italian Government by Médecins sans Frontières on 28 September 2011 (see paragraph 147 above), the Court notes that on that date the return of the migrants who had been held on the ships was already in progress. The second and third applicants had already boarded planes for Tunis, while the first applicant was to do so the following day (29 September 2011 – see paragraph 17 above). Even if the Government had responded to the appeal from Médecins sans Frontières as soon as possible, the inspection would have taken place when the ships were already being vacated. It could not therefore have realistically provided any useful evidence by which to assess the conditions of accommodation and, in particular, the existence of a serious overcrowding problem as described by the applicants. 210. Having regard to the foregoing, it cannot be established that the accommodation conditions on the ships reached the minimum level of severity required for treatment to fall within Article 3 of the Convention. The applicants’ allegations as to the lack of relevant information or explanations from the authorities and the point that their confinement on the ships followed on from their negative experience in the Contrada Imbriacola CSPA (see paragraph 146 above) cannot alter that finding. 211. It follows that the conditions in which the applicants were held on the ships Vincent and Audace did not constitute inhuman or degrading treatment. There has accordingly been no violation of Article 3 of the Convention under this head. VI. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 212. The applicants submitted that they had been victims of collective expulsion. They relied on Article 4 of Protocol No. 4, which reads as follows: “Collective expulsion of aliens is prohibited.” A. Chamber judgment 213. The Chamber noted that the applicants had been issued with individual refusal-of-entry orders, but that those orders nevertheless contained identical wording and the only differences were to be found in their personal data. Even though the applicants had undergone an identity check, this was not sufficient in itself to rule out the existence of a collective expulsion within the meaning of Article 4 of Protocol No. 4. In addition, the refusal-of-entry orders did not contain any reference to the personal situations of the applicants and the Government had failed to produce any document capable of proving that individual interviews concerning the specific situation of each applicant had taken place. The Chamber also took account of the fact that a large number of individuals of the same origin, around the time of the events at issue, had been subjected to the same outcome as the applicants. It observed that the agreement between Italy and Tunisia of April 2011, which had not been made public, provided for the return of unlawful migrants from Tunisia through simplified procedures, on the basis of the mere identification by the Tunisian consular authorities of the person concerned. Those elements sufficed for the Chamber to find that the applicants’ expulsion had been collective in nature and that Article 4 of Protocol No. 4 had therefore been breached (see paragraphs 153-58 of the Chamber judgment). B. The parties’ submissions 1. The applicants 214. The applicants complained that they had been expelled collectively solely on the basis of their identification and without any consideration of their individual situations. They observed that immediately after their arrival on Lampedusa, the Italian border authorities had registered their identity and taken their fingerprints. They had subsequently had no oral contact with the authorities in question about their situation; in particular, they had not been interviewed and had not been able to receive assistance from a lawyer or from independent qualified staff until they had boarded the planes to be returned to Tunis. At that point they had been asked to give their identity for the second time and the Tunisian Consul was then present. In those circumstances, the applicants had difficulty understanding at what point in time the Italian authorities could have gathered the information required for a careful assessment of their individual situations. The refusal-of-entry orders did not, moreover, contain any indication of such an assessment; they were standardised documents indicating only their date of birth and nationality and containing a set phrase to the effect that “none of the situations [provided for in] Article 10 § 4 of Legislative Decree no. 286 of 1998 [was] present” (see paragraph 19 above). A number of other Tunisian nationals had suffered the same fate, on the basis of a practice whereby the mere verification of Tunisian nationality sufficed for a simplified “readmission” procedure to be triggered. The ministerial note of 6 April 2011 (see paragraph 37 above) had announced such operations. 215. The applicants alleged that the application of Article 4 of Protocol No. 4 to the migrant crisis, which was currently at the forefront of European political debate, could not be refused on the sole ground that this phenomenon was different from other tragedies of history. In their view, to find otherwise would be tantamount to depriving the most vulnerable persons of protection in the current historic period. 216. As regards the agreement between Italy and Tunisia that had been relied on by the Government (see paragraph 223 below), the applicants were of the view that it did not comply with the safeguards provided for by Article 4 of Protocol No. 4 and had been used to give an appearance of legality to a practice that was in breach of the Convention. Moreover, a violation of Convention rights could not be ruled out on the sole ground that the State’s conduct was compliant with other international commitments. The applicants pointed out that in the case of Sharifi and Others (cited above, § 223), the Court had observed that no form of collective and indiscriminate removal could be justified by reference to the Dublin system. This applied all the more so to the bilateral agreement with Tunisia, which according to the applicants had only been disclosed by the Government at the time of their request for referral to the Grand Chamber (see paragraph 40 above). 217. The applicants observed that they had entered Italian territory and had remained there, deprived of their liberty, for a significant period of time. In international law, therefore, their removal had to be classified as an “expulsion” and not as “non-admission”. The concept of “expulsion” applied not only to aliens who had entered the country legally but extended to those who had crossed the national border illegally, as had in fact been acknowledged by the respondent Government themselves in the case of Hirsi Jamaa and Others (cited above, § 160). 218. The applicants further pointed out that under Italian law, when foreign nationals without the relevant documentation were allowed to enter the territory of the State in order to be given assistance, their removal could take two different legal forms, either “deferred refusal of entry”, ordered by the Chief of Police ( questore ), or “deportation” ( espulsione ), decided by the Prefect and followed by an implementing order of the Chief of Police, confirmed by the Justice of the Peace. If, as argued by the Government (see paragraph 226 below), the formal classification in domestic law were decisive for the application of Article 4 of Protocol No. 4, this would entail the unacceptable conclusion that the national authorities were free to decide on the safeguards enshrined in that provision and to deprive aliens of such protection through the use of “deferred refusal of entry”, a fast-track mechanism offering very few safeguards. 219. In response to the Government’s submission that Tunisia was a “safe country”, the applicants argued that Article 4 of Protocol No. 4 concerned the method of expulsion of a group of individuals and not the consequences that they might suffer in the destination country. It was thus a procedural safeguard providing “protection by anticipation” for the purposes of Article 3 of the Convention, which prohibited removal to a country where the individual might be subjected to proscribed treatment. 220. The applicants submitted that the key issue in the present case was whether an individual interview was necessary prior to their expulsion. They observed in this connection that only two aspects distinguished their case from Hirsi Jamaa and Others (cited above), namely the fact that they had actually been identified and that they had received identical “deferred refusal-of-entry” orders. Even though the similarity between the orders did not, in itself, lead to the conclusion that there had been a collective expulsion, it was an indication to that effect. In addition, in Sharifi and Others (cited above) the Court had found a violation of Article 4 of Protocol No. 4 in respect of one of the applicants who had been expelled (Mr Reza Karimi) even though he had been identified, because there was no evidence that, at the time of the identity check, an interpreter or independent legal adviser had been present, those being indications of an individual interview. Where there was evidence of such an interview, however, the Court had excluded any violation of that provision in the cases of M.A. v. Cyprus (no. 41872/10, ECHR 2013); Sultani v. France (no. 45223/05, ECHR 2007-IV); and Andric v. Sweden ((dec.) no. 45917/99, 23 February 1999). In the applicants’ view, to exclude the need for an individual interview would render meaningless the procedural safeguard of Article 4 of Protocol No. 4, because an expulsion could be justified purely on the basis that the alien’s nationality – that is, the fact of belonging to a group – had been established. 221. The applicants argued that their interpretation of Article 4 of Protocol No. 4 was confirmed by customary international law, by the case ‑ law of the Court of Justice of the European Union (CJEU) – to the effect that aliens had the right to express their view on the legality of their stay (they referred, in particular, to the Khaled Boudjlida and Sophie Mukarubega judgments cited above in paragraphs 42-45) – and by a 2016 report of the Italian Senate’s Special Commission. The Special Commission had criticised a common practice at the Lampedusa CSPA whereby, only a few hours after being rescued at sea, the migrants had been asked to fill in a form offering them the following options to explain why they had come to Italy: for work, family reunification, to escape poverty, to seek asylum or for other reasons. The applicants explained that those who ticked the box “work” would be earmarked for removal on the basis of a “deferred refusal-of-entry”. The Special Commission had recommended in particular that a real interview be conducted, to determine whether the alien needed protection, in the presence of UNHCR workers. 222. At the hearing before the Court, the applicants’ representatives observed that the Government’s allegation that “information sheets” had been filled in for each migrant (see paragraph 224 below) had not been supported by any evidence and could not therefore be upheld. According to those representatives, it would have been pointless for their clients to indicate any reasons they might have wished to put forward in opposition to their return. The representatives also pointed out, however, that the applicants’ individual circumstances did not enable them to rely on international protection or the non-refoulement principle; they were not claiming that they had a right of abode in Italy or that their return had exposed them to a risk of being subjected to inhuman or degrading treatment in Tunisia. 2. The Government 223. The Government alleged that no collective expulsion had taken place. They observed that the applicants had been returned according to the fast-track procedure provided for in the agreement with Tunisia (see paragraphs 36-40 above), which could be regarded as a “readmission” agreement within the meaning of the Return Directive (see paragraph 41 above). They argued that this agreement had contributed to the repression of migrant smuggling, as called for by the United Nations Convention on Transnational Organized Crime. Moreover, Tunisia was a safe country which respected human rights, this being shown by the fact that the applicants had not reported experiencing persecution or violations of their fundamental rights after their return. 224. In the Government’s submission, upon their arrival on Lampedusa all the irregular migrants had been identified by the police in individual interviews with each one, assisted by an interpreter or a cultural mediator. At the hearing before the Court, the Government further stated that “information sheets” containing personal data and any circumstances specific to each migrant had been filled in after the interviews. The forms concerning the applicants had been destroyed, however, during the fire at the Contrada Imbriacola CSPA (see paragraph 14 above). Moreover, photographs had been taken and the migrants’ fingerprints recorded. 225. In the Government’s view, the applicants, like all the other migrants, had definitely been informed of the possibility of lodging an asylum application, but they had simply decided not to make use of that avenue. At the time of the fire, seventy-two other migrants on Lampedusa had in fact expressed their wish to apply for asylum and on 22 September 2011 they had been transferred to the reception centres of Trapani, Caltanissetta and Foggia in order to establish their status. 226. The Government observed that the Chamber had referred to “ refoulement ” (refusal of entry) and to “ expulsion ” (deportation), without pointing out the distinction between the two notions, which in reality corresponded to different procedures in domestic legislation, more specifically under Legislative Decree no. 286 of 1998 (see paragraph 33 above). In particular, “refusal of entry at the border” was a decision by the border guards to turn away aliens arriving at border crossings without papers and without meeting the requirements for admission to Italy. The “deferred refusal-of-entry” procedure, ordered by the Chief of Police ( questore ), applied where an alien had entered the country illegally and had been allowed to stay temporarily to receive protection. Lastly, “deportation” corresponded to a written and reasoned decision whereby the competent administrative or judicial authorities ordered the removal from the country of an alien who did not have, or no longer had, leave to remain in the country. The Italian legal system made no provision for collective expulsion and Article 19 of Legislative Decree no. 286 of 1998 prohibited the return of an alien to a State where he or she might be subjected to persecution. The Government explained that in the present case the applicants had been issued with “refusal-of-entry and removal” orders and had not been subjected to a measure of “expulsion” (i.e., deportation). Therefore, in the Government’s view, it could not have been a “collective expulsion”. 227. The Government further observed that in the present case the refusal-of-entry orders had been individual documents drawn up for each of the applicants and issued after a careful examination of the respective situation. They had been based on the identification of the applicants, as confirmed by the Tunisian Consul in Italy, and the removal had been implemented on the basis of a laissez-passer issued to each of them individually. In the Government’s submission, the meetings with the Tunisian Consul had been individual and effective, as shown by the fact that, following the establishment on those occasions of information about their age or nationality, some of the migrants listed by the Italian authorities had not been removed after all. 228. The respective refusal-of-entry orders, translated into the applicants’ mother tongue, had been notified to each of the applicants, who had refused to sign the record of notification. In the Government’s submission, those orders had been largely similar because, even though they had had the opportunity to do so, the applicants had not indicated any points worthy of note. These factors, in the Government’s view, distinguished the present case from Čonka (cited above, §§ 61-63), concerning the expulsion of a group of Slovakian nationals of Roma origin. 229. The Government lastly pointed out that the Palermo preliminary investigations judge, in his decision of 1 June 2012 (see paragraph 26 above), has taken the view that the refusal-of-entry measure was lawful and that the time-frame for the issuance of the orders had to be construed in the light of the particular circumstances of the case. The first applicant, who had unlawfully entered Italy on 17 September 2011, had been removed on 29 September 2011; the two others, who had entered on 18 September, had been returned on 27 September. In the Government’s view, those periods of twelve and nine days respectively could not be regarded as excessive. C. Third-party intervention 1. Coordination Française pour le droit d’asile 230. This coalition of associations called upon the Court to retain the classification of “collective expulsion” where migrants had been identified, but where there was no indication in the circumstances of the case that their individual situations had undergone a genuine and effective examination. Such an examination might render absolutely necessary the systematic presence of an interpreter and an official trained to examine the situations of aliens and asylum-seekers, and a consistent pattern of circumstances could reflect an intention to carry out an expulsion en masse. The Coordination Française pour le droit d’asile took the view that the Chamber judgment fell squarely within the logic of the Court’s case-law (it referred in particular to the Čonka, Hirsi Jamaa and Others and Sharifi and Others judgments, cited above) and was in phase with the relevant international practice (it referred, inter alia, to the judgment of the Inter-American Court of Human Rights of 28 August 2014 in the Expelled Dominicans and Haitians v. Dominican Republic case, and General Recommendation no. 30 of the United Nations Committee for the Elimination of Racial Discrimination). It asked the Court to exercise particular vigilance in cases where there were readmission agreements, which increased the risk of chain refoulement through fast-track procedures, and submitted that the safeguard under Article 4 of Protocol No. 4 ensured compliance with the obligation of non-refoulement. The absence of an explicit request for asylum did not release the State from that obligation. The expulsion of migrants without thoroughly examining their individual situation would significantly increase the risk of a breach of the non-refoulement principle. 2. The McGill Centre 231. In the submission of the McGill Centre, Article 4 of Protocol No. 4 should be interpreted as imposing on the State a duty of procedural fairness towards each individual concerned by an expulsion decision, with safeguards that might vary depending on the context. The political and social context of expulsion decisions, in particular, should be taken into account (it referred, inter alia, to Georgia v. Russia (I), cited above, § 171). 232. The Centre pointed out that collective expulsions were also prohibited under Article 22 § 9 of the American Convention on Human Rights and by Article 12 § 5 of the African Charter on Human and Peoples’ Rights, which added the need for a discriminatory dimension on national, racial, ethnic or religious grounds. It was true that, according to the committee of experts responsible for drafting the Protocol, Article 4 was supposed to prohibit “collective expulsions of aliens of the kind which have already taken place”, referring to events in the Second World War. However, through its evolutive interpretation of this Article the Court had moved away from the context in which it was drafted and would no longer require the existence of discrimination in order to establish that the expulsion of a certain number of aliens was collective in nature. 233. It could be seen from the Court’s case-law that there was a presumption of “collective” expulsion where there was an expulsion of aliens as a group. The State would then have a duty to show that it had guaranteed a fair and individual procedure to each expelled individual, through a reasonable and objective examination of his or her specific situation. The Court did not, however, impose a “mandatory decision ‑ making process”. A similar approach had been adopted by the United Nations Human Rights Committee and by the Inter-American Commission on Human Rights, which in its 1991 report on the “Situation of Haitians in the Dominican Republic” found that there had been a collective expulsion of Haitians by the Government of the Dominican Republic because the expelled individuals had not been given a formal hearing enabling them to claim their right to remain. According to the Commission, persons being expelled had the right to be heard and the right to know and to challenge the legal grounds for the expulsion. 3. The AIRE Centre and ECRE 234. Relying on the preparatory work in respect of Protocol No. 4, on the International Law Commission’s Draft Articles on the expulsion of aliens, and on the interpretation of Article 13 of the International Covenant on Civil and Political Rights, these two associations argued that Article 4 of Protocol No. 4 prohibited the “collectivity” of an expulsion and the lack of any individualised consideration of each personal situation. Compliance with that provision would reduce the risk of discriminatory treatment. 235. According to the AIRE Centre and ECRE, the fact that a State might generically be considered a “safe country” was not conclusive of the assumption that it was safe for the return of everyone. An individual assessment had to be made before the return, and the fact that the applicants had not alleged that their return to Tunisia had exposed them to a risk of a violation of Articles 2 or 3 of the Convention was immaterial. Similarly, in order to implement the UN Protocol against Smuggling of Migrants by Land, Sea and Air, individualised procedures had to be in place in order to identify the victims of human trafficking who wished to cooperate with the authorities. Moreover, the right of a migrant to be heard and to make known his or her views effectively before the adoption of an expulsion decision had been upheld by the CJEU in the Khaled Boudjlida and Sophie Mukarubega judgments (cited above, see paragraphs 42-45 above). 236. The AIRE Centre and ECRE observed that Article 19 § 1 of the European Union Charter of Fundamental Rights prohibited collective expulsions and argued that at the material time Italy had been bound to comply with the Return Directive (see paragraph 41 above), not having expressly declared that it wished to apply Article 2 § 2 (a) of that instrument. The intervening associations also pointed out that in a decision adopted on 21 January 2016 in the case of ZAT, IAJ, KAM, AAM, MAT, MAJ and LAM v. Secretary of State for the Home Department, a United Kingdom court had held that vulnerable Syrian children in a camp in Calais, France, who had relatives in the United Kingdom should be transferred to that country immediately, as soon as they had filed their asylum applications in France. D. The Court’s assessment 1. Principles established in the Court’s case-law 237. 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 Georgia v. Russia (I), cited above, § 167; see also Andric, decision cited above; Davydov v. Estonia (dec), no. 16387/03, 31 May 2005; Sultani, cited above, § 81; and Ghulami v. France (dec), no. 45302/05, 7 April 2009). This does not mean, however, that where the latter condition is satisfied the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4 (see Čonka, cited above, § 59, and Georgia v. Russia (I), cited above, § 167). 238. The purpose of Article 4 of Protocol No. 4 is to prevent States from being able to remove a certain number of aliens without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Hirsi Jamaa and Others, cited above, § 177, and Sharifi and Others, cited above, § 210; see also Andric, decision cited above). In order to determine whether there has been a sufficiently individualised examination, it is necessary to consider the circumstances of the case and to verify whether the removal decisions had taken 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). 239. 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 is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis (see, among other authorities, M.A. v. Cyprus, cited above, §§ 246 and 254; Sultani, cited above, § 81; Hirsi Jamaa and Others, cited above, § 184; and Georgia v. Russia (I), cited above, § 167). 240. The Court has held that there is no violation of Article 4 of Protocol No. 4 where the lack of an individual expulsion decision can be attributed to the culpable conduct of the person concerned (see Hirsi Jamaa and Others, cited above, § 184; see also M.A. v. Cyprus, cited above, § 247; Berisha and Haljiti v. the former Yugoslav Republic of Macedonia (dec.), no. 18670/03, 16 June 2005; and Dritsas v. Italy (dec), no. 2344/02, 1 February 2011). 241. Without calling into question either the right of States to establish their own immigration policies (see Georgia v. Russia (I), cited above, § 177), potentially in the context of bilateral cooperation, or the obligations stemming from membership of the European Union (see Sharifi and Others, cited above, § 224), the Court has pointed out that problems with managing migratory flows or with the reception of asylum-seekers cannot justify recourse to practices which are not compatible with the Convention or the Protocols thereto (see Hirsi Jamaa and Others, cited above, § 179). The Court has also taken note of the “new challenges” facing European States in terms of immigration control as a result of the economic crisis, recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East, and the fact that migratory flows are increasingly arriving by sea (see M.S.S. v. Belgium and Greece, cited above, § 223, and Hirsi Jamaa and Others, cited above, §§ 122 and 176). 242. The Court observes that to date it has found a violation of Article 4 of Protocol No. 4 in only four cases. In the first ( Čonka, cited above, §§ 60 ‑ 63) the measures of detention and removal had been adopted for the purpose of implementing an order to leave the country which made no reference to the applicants’ asylum request, whereas the asylum procedure had not yet been completed. In addition, a number of people had been simultaneously summoned to the police station, in conditions that made it very difficult for them to contact a lawyer, and the political bodies responsible had announced that there would be operations of that kind. The applicants in the second case ( Hirsi Jamaa and Others, cited above, § 185) had not undergone any identity checks and the authorities had merely put the migrants, who had been intercepted on the high seas, onto military vessels to take them back to the Libyan coast. In Georgia v. Russia (I) (cited above, §§ 170-78) the finding of a violation was based on a “routine of expulsions”, which had followed a recurrent pattern throughout Russia, the result of a coordinated policy of arrest, detention and expulsion of Georgians, who had been arrested under the pretext of examination of their documents, taken to Militia stations where they were gathered in large groups, and expelled after courts had entered into preliminary agreements to endorse such decisions, without any legal representation or examination of the particular circumstances of each case. In Sharifi and Others (cited above, §§ 214-25), lastly, the Court, taking into consideration a range of sources, found that the migrants intercepted in Adriatic ports were being subjected to “automatic returns” to Greece and had been deprived of any effective possibility of seeking asylum. 2. Application of those principles in the present case 243. The Court must first address the Government’s argument (see paragraph 226 above) that Article 4 of Protocol No. 4 is not applicable because the procedure to which the applicants were subjected was classified as a “refusal of entry with removal” and not as an “expulsion” (deportation). The Court notes that the International Law Commission (ILC) has defined “expulsion” as “a formal act or conduct attributable to a State, by which an alien is compelled to leave the territory of that State” (see Article 2 of the Draft Articles on the Expulsion of Aliens, cited in paragraph 46 above). In the same vein, the Court has previously noted that “the word ‘expulsion’ should be interpreted ‘in the generic meaning, in current use (to drive away from a place)’” (see Hirsi Jamaa and Others, cited above, § 174). 244. The Court sees no reason to reach a different conclusion in the present case. It observes that there is no doubt that the applicants, who were on Italian territory, were removed from that State and returned to Tunisia against their will, thus constituting an “expulsion” within the meaning of Article 4 of Protocol No. 4. It remains to be established whether that expulsion was “collective” in nature. 245. In this connection, the ILC, informed by the Court’s case-law, has indicated that “collective expulsion means expulsion of aliens, as a group” (see Article 9 § 1 of the Draft Articles on the Expulsion of Aliens and the Commentary to that Article, cited in paragraphs 46 and 47 above). Turning now to the facts of the present case, the Court observes at the outset that the applicants have not disputed the fact that they underwent identification on two occasions: immediately after their arrival at the Contrada Imbriacola CSPA by Italian civil servants (see paragraph 12 above), and before they boarded the planes for Tunis, by the Tunisian Consul (see paragraph 18 above). However, the parties are not in agreement as to the conditions of the first identification. In the Government’s submission, it had consisted of a genuine individual interview, carried out in the presence of an interpreter or cultural mediator, following which the authorities had filled out an “information sheet” containing personal data and any circumstances specific to each migrant (see paragraph 224 above). The applicants alleged, by contrast, that the Italian authorities had merely recorded their identities and fingerprints, without taking their personal situations into account and without any interpreter or independent legal adviser being present (see paragraph 214 above). They lastly disputed the Government’s allegation that there were individual information sheets concerning each migrant, observing that there was no evidence of this (see paragraph 222 above). 246. The Court notes that the Government provided a plausible explanation to justify their inability to produce the applicants’ information sheets, namely the fact that those documents had been destroyed in the fire at the Contrada Imbriacola CSPA (see paragraph 14 above). Moreover, it should be observed that the applicants did not dispute the Government’s submission that ninety-nine “social operators”, three social workers, three psychologists, and eight interpreters and cultural mediators worked at the CSPA (see paragraph 152 above). In that context, the Court also notes that, according to the report of the PACE Ad Hoc Sub-Committee (see paragraph 49 above), interpreters and cultural mediators worked on Lampedusa from February 2011 onwards (see § 28 of that report). It is reasonable to assume that those persons intervened to facilitate communication and mutual understanding between the migrants and the Italian authorities. 247. In any event, the Court is of the opinion that at the time of their first identification, which according to the Government consisted in taking their photographs and fingerprints (see paragraph 224 above), or at any other time during their confinement in the CSPA and on board the ships, the applicants had an opportunity to notify the authorities of any reasons why they should remain in Italy or why they should not be returned. In that context it is significant that, as stated by the Government (see paragraph 225 above) and the Palermo preliminary investigations judge (see paragraphs 25 and 27 above), and not disputed by the applicants, seventy-two migrants held in the Lampedusa CSPA at the time of the fire expressed their wish to apply for asylum, thus halting their return and resulting in their transfer to other reception centres. It is true that the applicants stated that their individual circumstances did not allow them to invoke international protection (see paragraph 222 above). Nevertheless, in an expulsion procedure the possibility of lodging an asylum application is a paramount safeguard, and there is no reason to assume that the Italian authorities, which heeded the wishes of other migrants who sought to rely on the non ‑ refoulement principle, would have remained unreceptive in response to the submission of other legitimate and legally arguable impediments to their removal. 248. The Court would point out that Article 4 of Protocol No. 4 does not guarantee the right to an individual interview in all circumstances; the requirements of this provision may be satisfied where each alien has a genuine and effective possibility of submitting arguments against his or her expulsion, and where those arguments are examined in an appropriate manner by the authorities of the respondent State. 249. In the present case, the applicants, who could reasonably have expected to be returned to Tunisia in view of the conditions of their arrival on the Italian coast, remained for between nine and twelve days in Italy. Even assuming that they encountered objective difficulties in the CSPA or on the ships (see, in particular, §§ 49 and 50 of the PACE Ad Hoc Sub ‑ Committee’s report, cited in paragraph 49 above), the Court is of the view that during that not insignificant period of time the applicants had the possibility of drawing the attention of the national authorities to any circumstance that might affect their status and entitle them to remain in Italy. 250. The Court further notes that on 27 and 29 September 2011, before boarding the planes for Tunis, the applicants were received by the Tunisian Consul, who recorded their identities (see paragraph 18 above); they thus underwent a second identification. Even though it was carried out by a representative of a third State, this later check enabled the migrants’ nationality to be confirmed and gave them a last chance to raise arguments against their expulsion. The Government, whose claims on this point are not disputed by the applicants, substantiated them by pointing out that, after details as to their age or nationality had been established during their meetings with the Tunisian Consul, some of the migrants listed by the Italian authorities had not been removed after all (see paragraph 227 above). 251. The Chamber rightly observed that the refusal-of-entry orders had been drafted in comparable terms, only differing as to the personal data of each migrant, and that a large number of Tunisian migrants had been expelled at the relevant time. However, according to the case-law cited in paragraph 239 above, those two facts cannot in themselves be decisive. In the Court’s view, the relatively simple and standardised nature of the refusal-of-entry orders could be explained by the fact that the applicants did not have any valid travel documents and had not alleged either that they feared ill-treatment in the event of their return or that there were any other legal impediments to their expulsion. It is therefore not unreasonable in itself for those orders to have been justified merely by the applicants’ nationality, by the observation that they had unlawfully crossed the Italian border, and by the absence of any of the situations provided for in Article 10 § 4 of Legislative Decree no. 286 of 1998 (political asylum, granting of refugee status or the adoption of temporary protection measures on humanitarian grounds, see paragraphs 19 and 33 above). 252. It follows that in the particular circumstances of the case, the virtually simultaneous removal of the three applicants does not lead to the conclusion that their expulsion was “collective” within the meaning of Article 4 of Protocol No. 4 to the Convention. It may indeed be explained as the outcome of a series of individual refusal-of-entry orders. Those considerations suffice for the present case to be distinguished from the cases of Čonka, Hirsi Jamaa and Others, Georgia v. Russia (I) and Sharifi and Others (all cited and described in paragraph 242 above), such as to preclude the characterisation of the applicants’ expulsion as “collective”. 253. The Court would observe, moreover, that the applicants’ representatives, both in their written observations and at the public hearing (see paragraph 222 above), were unable to indicate the slightest factual or legal ground which, under international or national law, could have justified their clients’ presence on Italian territory and preclude their removal. This calls into question the usefulness of an individual interview in the present case. 254. To sum up, the applicants underwent identification on two occasions, their nationality was established, and they were afforded a genuine and effective possibility of submitting arguments against their expulsion. There has therefore been no violation of Article 4 of Protocol No. 4. 255. This finding makes it unnecessary for the Court to address the question whether, as the Government argued (see paragraph 223 above), the April 2011 agreement between Italy and Tunisia, which has not been made public, can be regarded as a “readmission” agreement within the meaning of the Return Directive (see paragraph 41 above), and whether this could have implications under Article 4 of Protocol No. 4. VII. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLES 3 AND 5 OF THE CONVENTION AND WITH ARTICLE 4 OF PROTOCOL No. 4 256. The applicants complained that they had not been afforded an effective remedy under Italian law by which to raise their complaints under Articles 3 and 5 of the Convention and under 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.” A. Chamber judgment 257. The Chamber began by considering that, to the extent that the applicants relied on Article 13 in conjunction with Article 5, their complaint was covered by the Court’s findings under Article 5 § 4 (see paragraph 161 of the Chamber judgment). 258. It went on to find a violation of Article 13 taken together with Article 3. It observed that the Government had not indicated any remedies by which the applicants could have complained about the conditions of their accommodation in the CSPA or on the ships. Moreover, an appeal to the Justice of the Peace against the refusal-of-entry orders would have served merely to challenge the lawfulness of their removal to Tunisia, and those orders had been issued only at the end of their period of confinement (see paragraphs 168-70 of the Chamber judgment). 259. In addition, the Chamber noted that in the context of an appeal against the refusal-of-entry orders, the Justice of the Peace could assess their lawfulness in the light of domestic law and the Italian Constitution. The Chamber found that the applicants could thus have complained that their expulsion was “collective” in nature and that there was nothing to suggest that such a complaint would have been disregarded by the judge. Nevertheless, the orders expressly stipulated that the lodging of an appeal with the Justice of the Peace would not have suspensive effect, and this appeared to run counter to the case-law set out by the Grand Chamber in its De Souza Ribeiro v. France judgment ([GC], no. 22689/07, § 82, ECHR 2012). On that basis the Chamber found a violation of Article 13 taken together with Article 4 of Protocol No. 4 (see paragraphs 171-73 of the Chamber judgment). B. The parties’ submissions 1. The applicants 260. The applicants alleged that it had not been possible for them to submit to the Italian authorities a complaint about the degrading conditions to which they had been subjected during their deprivation of liberty. They added that the refusal-of-entry orders had provided for the possibility of an appeal, within a period of sixty days, to the Agrigento Justice of the Peace. However, such a remedy would not have stayed the execution of the removal. The applicants argued that it was clear from the Court’s case-law (they referred in particular to Hirsi Jamaa and Others, cited above, § 206) that the suspensive nature of a remedy was, in such matters, a condition of its effectiveness. That was merely a logical consequence of the hermeneutic principle that, to be effective, Convention provisions must be interpreted in a manner which guaranteed rights that were practical and effective and not theoretical and illusory. In the applicants’ view, the assessment of the lawfulness of the expulsion must therefore take place before the measure is enforced. 261. The applicants alleged that the violation that they had sustained was even more serious than that found by the Court in the Čonka case (cited above), in a situation where the domestic legislation had provided, in abstracto, that a stay of execution could be ordered. In the present case, however, the refusal-of-entry orders had clearly indicated that appeals against them could never have suspensive effect. 262. In addition, the applicants denied having received copies of the orders, as was proven, in their view, by the fact that their signatures did not appear on the records of notification. Nor had they been able to obtain legal assistance, because lawyers had no access to holding facilities and could not be contacted by telephone from inside such premises. 263. As regards the decisions of the Agrigento Justice of the Peace annulling two refusal-of-entry orders (see paragraph 31 above), the applicants observed that they had concerned two migrants who had not yet been removed and who, in accordance with Article 14 of Legislative Decree no. 268 of 1998, had been placed in a CIE. The migrants in question, they explained, had challenged the lawfulness of the refusal-of-entry measure as the legal basis for their detention in the CIE, and they had been able to do so because they were still on Italian soil. The applicants observed that, unlike those migrants, they themselves could only have challenged their refusal ‑ of ‑ entry orders as the legal basis for their removal, and then only after their return to Tunisia. 2. The Government 264. The Government maintained their argument that the applicants had been entitled to appeal to the Agrigento Justice of the Peace against the refusal-of-entry orders (see paragraph 126 above). C. Third-party intervention 265. The AIRE Centre and ECRE argued that, even in the absence of an express indication to that effect, the Return Directive (see paragraph 41 above) and the Schengen Borders Code, read in the light of the Convention and the EU Charter of Fundamental Rights, should be interpreted to mean that in the event of collective expulsion, remedies against removal should have automatic suspensive effect. D. The Court’s assessment 266. The Court would begin by observing, as the Chamber did, that, according to its settled case-law, Article 5 § 4 of the Convention provides a lex specialis in relation to the more general requirements of Article 13 (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999-II, and Ruiz Rivera v. Switzerland, no. 8300/06, § 47, 18 February 2014). In the present case, the facts giving rise to the applicants’ complaint under Article 13 of the Convention in conjunction with Article 5 are identical to those already examined under Article 5 § 4, and are thus covered by the Court’s findings under the latter provision (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 60, Series A no. 77, and Chahal, cited above, §§ 126 and 146). 267. It remains to be examined whether there has been a violation of Article 13 taken together with Article 3 of the Convention and Article 4 of Protocol No. 4. 1. Principles established in the Court’s case-law 268. 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 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. 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, cited above, § 157, and Hirsi Jamaa and Others, cited above, § 197). 2. Application of those principles in the present case 269. The Court first notes that it declared admissible the applicants’ complaints under the substantive head of Article 3 of the Convention and under Article 4 of Protocol No. 4. Even though, for the reasons given above, it did not find a violation of those two provisions, it nevertheless considers that the complaints raised by the applicants thereunder were not manifestly ill-founded and raised serious questions of fact and law requiring examination on the merits. The complaints in question were therefore “arguable” for the purposes of Article 13 of the Convention (see, mutatis mutandis, Hirsi Jamaa and Others, cited above, § 201). (a) Alleged violation of Article 13 of the Convention taken together with Article 3 270. Like the Chamber, the Court observes that the Government have not indicated any remedies by which the applicants could have complained about the conditions in which they were held in the Contrada Imbriacola CSPA or on the ships Vincent and Audace. An appeal to the Justice of the Peace against the refusal-of-entry orders would have served only to challenge the lawfulness of their removal. Moreover, those orders were issued only at the end of their period of confinement. 271. It follows that there has been a violation of Article 13 taken together with Article 3 of the Convention. (b) Alleged violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4 272. In so far as the applicants complained of the lack of any effective remedy by which to challenge their expulsion from the perspective of its collective aspect, the Court notes that the refusal-of-entry orders indicated expressly that the individuals concerned could appeal against them to the Agrigento Justice of the Peace within a period of sixty days (see paragraph 19 above). There is no evidence before the Court to cast doubt on the effectiveness of that remedy in principle. Moreover, the Government adduced two decisions of the Agrigento Justice of the Peace showing that, on an appeal by two migrants, the judge examined the procedure followed for the issuance of the refusal-of-entry orders in question and assessed the lawfulness of that procedure in the light of domestic law and the Constitution. The Justice of the Peace decided, in particular, that the orders should be declared null and void on the ground that an excessive length of time had elapsed between the identification of each irregular migrant and the adoption of the order (see paragraphs 30 ‑ 31 above). Like the Chamber, the Court sees no reason to doubt that, in the event of an appeal against a refusal-of-entry order, the Justice of the Peace would also be entitled to examine any complaint about a failure to take account of the personal situation of the migrant concerned and based therefore, in substance, on the collective nature of the expulsion. 273. The Court further notes that it can be seen from the records of notification appended to the refusal-of-entry orders that the addressees refused to “sign or to receive a copy” of those documents (see paragraph 20 above). The applicants did not adduce any evidence that would cast doubt on the veracity of that annotation. They cannot therefore blame the authorities either for any lack of understanding on their part of the content of the orders, or for any difficulties that their lack of information might have caused for the purposes of lodging an appeal with the Agrigento Justice of the Peace. 274. While there was certainly a remedy available, it would not, “in any event”, have suspended the enforcement of the refusal-of-entry orders (see paragraph 19 above). The Court must therefore determine whether the lack of suspensive effect, in itself, constituted a violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4. 275. The Chamber answered that question in the affirmative, basing its finding on paragraph 82 of the judgment in De Souza Ribeiro (cited above), which reads as follows: “Where a complaint concerns allegations that the person’s expulsion would expose him to a real risk of suffering treatment contrary to Article 3 of the Convention, in view of the importance the Court attaches to that provision and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised, the effectiveness of the remedy for the purposes of Article 13 requires imperatively that the complaint be subject to 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 a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see Jabari, cited above, § 50), and reasonable promptness (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004 ‑ IV). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Gebremedhin [Gaberamadhien], cited above, § 66, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right to life safeguarded by Article 2 of the Convention. Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 (see Čonka, cited above, §§ 81-83, and Hirsi Jamaa and Others, cited above, § 206).” 276. The Court observes that, while the last sentence of the above-cited paragraph 82 certainly appears to establish the need for “a remedy with automatic suspensive effect ... for complaints under Article 4 of Protocol No. 4”, it cannot be read in isolation. On the contrary, it must be understood in the light of the paragraph as a whole, which establishes an obligation for States to provide for such a remedy where the person concerned alleges that the enforcement of the expulsion would expose him or her to a real risk of ill-treatment in breach of Article 3 of the Convention or of a violation of his or her right to life under Article 2, on account of the irreversible nature of the harm that might occur if the risk of torture or ill-treatment materialised. It should also be noted that the last statement in paragraph 82 of the De Souza Ribeiro judgment is corroborated by the citation of the Čonka (cited above, §§ 81-83) and Hirsi Jamaa and Others (cited above, § 206) judgments. However, those two cases concerned situations in which the applicants had sought to alert the national authorities to the risk that they might be subjected to treatment in breach of Article 3 of the Convention in the destination countries, and not to any allegation that their expulsion from the host State was collective in nature. 277. The Court takes the view that where, as in the present case, an applicant does not allege that he or she faces violations of Articles 2 or 3 of the Convention in the destination country, removal from the territory of the respondent State will not expose him or her to harm of a potentially irreversible nature. 278. The risk of such harm will not obtain, for example, where it is argued that the expulsion would breach the person’s right to respect for his or her private and family life. That situation is envisaged in paragraph 83 of the De Souza Ribeiro judgment, which must be read in conjunction with the preceding paragraph, and which reads as follows: “By contrast, where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, Article 13 of the Convention in conjunction with Article 8 requires that States must make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see M. and Others v. Bulgaria, no. 41416/08, §§ 122-32, 26 July 2011, and, mutatis mutandis, Al-Nashif v. Bulgaria, no. 50963/99, § 133, 20 June 2002).” 279. In the Court’s view, similar considerations apply where an applicant alleges that the expulsion procedure was “collective” in nature, without claiming at the same time that it had exposed him or her to a risk of irreversible harm in the form of a violation of Articles 2 or 3 of the Convention. It follows that in such cases the Convention does not impose an absolute obligation on a State to guarantee an automatically suspensive remedy, but merely requires that the person concerned should have an effective possibility of challenging the expulsion decision by having a sufficiently thorough examination of his or her complaints carried out by an independent and impartial domestic forum. The Court finds that the Agrigento Justice of the Peace satisfied those requirements. 280. The Court would also point out that the fact that the remedy available to the applicant did not have suspensive effect was not a decisive consideration for the conclusion reached in the De Souza Ribeiro case that there had been a violation of Article 13 of the Convention. That conclusion was based on the fact that the applicant’s “arguable” complaint, to the effect that his removal was incompatible with Article 8 of the Convention, had been dismissed rapidly, in fact extremely hastily (the applicant had appealed to the Administrative Court on 26 January 2007 at 3.11 p.m., and had been deported to Brazil on the same day at around 4 p.m. – see De Souza Ribeiro, cited above, §§ 84-100, and in particular §§ 93-94 and 96). 281. It follows that the lack of suspensive effect of a removal decision does not in itself constitute a violation of Article 13 of the Convention where, as in the present case, the applicants do not allege that there is a real risk of a violation of the rights guaranteed by Articles 2 or 3 in the destination country. Accordingly, there has been no violation of Article 13 of the Convention taken together with Article 4 of Protocol No. 4. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 282. 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 283. The applicants claimed 65,000 euros (EUR) each in respect of the non-pecuniary damage that they alleged to have sustained. They argued that this amount was justified on account of the gravity of the violations of which they were victims. They requested that this sum be paid into their own Tunisian bank accounts. 284. The Government took the view that the applicants’ claims for just satisfaction were “unacceptable”. 285. Having regard to the particular circumstances of the case and to the conclusions it has reached as to the applicants’ various complaints, the Court finds that each applicant should be awarded EUR 2,500 in respect of non-pecuniary damage, amounting to a total of EUR 7,500 for all three applicants. B. Costs and expenses 286. The applicants also claimed EUR 25,236.89 for the costs and expenses incurred by them before the Court. That sum covered: the travel expenses of their representatives for a visit to Tunis (EUR 432.48); the travel expenses of their representatives for attendance at the Grand Chamber hearing (EUR 700); the translation of the observations before the Chamber (EUR 912.03) and before the Grand Chamber (EUR 1,192.38); the consultation of a lawyer specialising in international human rights law (EUR 3,000) and a lawyer specialising in immigration law (EUR 3,000); and the fees of their representatives in the proceedings before the Court (in total, EUR 16,000). The applicants’ representatives stated that they had advanced those expenses and requested that the sum awarded be paid directly into their respective bank accounts. 287. The Government submitted no observations on this point. 288. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court considers excessive the total sum claimed for the costs and expenses incurred in the proceedings before it (EUR 25,236.89). It decides to award EUR 15,000 under that head to the applicants jointly. That sum is to be paid directly into the bank accounts of the applicants’ representatives (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, § 219, ECHR 2013). C. Default interest 289. 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), a violation of Article 5 § 2 (right to be informed promptly of the reasons for deprivation of liberty) and a violation of Article 5 § 4 (right to a speedy decision by a court on the lawfulness of detention) of the Convention. It observed in particular that the applicants’ deprivation of liberty without any clear and accessible basis did not satisfy the general principle of legal certainty and was incompatible with the need to protect the individual against arbitrariness. The refusal-of-entry orders issued by the Italian authorities had made no reference to the legal and factual reasons for the applicants’ detention and they had not been notified of them “promptly”. The Grand Chamber also noted that the Italian legal system had not provided them with any remedy by which they could have obtained a judicial decision on the lawfulness of their detention. The Grand Chamber further held in this case that there had been no violation of Article 4 (prohibition of collective expulsion of aliens) to Protocol No. 4 to the Convention, that there had been no violation of Article 13 (right to an effective remedy) of the Convention combined with Article 4 to Protocol No. 4, that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) as regards both the conditions in the Lampedusa early reception and aid centre and the conditions on the ships in Palermo harbour, and that there had been a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 3 concerning the lack of a remedy by which the applicants could have complained about the conditions in which they were held in the Lampedusa reception centre or on the ships. |
347 | Rape and sexual abuse | II. RELEVANT LAW AND PRACTICE A. Relevant domestic criminal law A. Relevant domestic criminal law A. Relevant domestic criminal law 58. Article 183 §§ 1 and 2 of the Criminal Code regulating the criminal offence of sexual assault on a person younger than 15 years, as in force at the material time, reads as follows: “(1) A person who engages in sexual intercourse or any other sexual act with a person of the opposite or same sex who is not yet fifteen years old, and where the maturity of the perpetrator and that of the victim are obviously disproportionate, shall be punished with imprisonment of one to eight years. (2) A person who commits the above act against a person who is not yet ten years old, or against a vulnerable person who is not yet fifteen years old, or by using force or threat to life or limb, shall be punished with imprisonment of three years or more ...” 59. Section 148 of the Criminal Procedure Act, as in force at the material time, provides that the police, having concluded the preliminary investigation of an alleged criminal offence, will draw up a criminal complaint based on the information collected and send it to the State Prosecutor’s Office. However, even if the information gathered does not appear to provide any grounds for such a criminal complaint to be made, the police must submit a report on their actions to the State Prosecutor. 60. As regards the protection of under-age victims of criminal offences of a sexual nature during judicial investigations, the Criminal Procedure Act includes a number of provisions aimed at protecting under-age victims of or witnesses to criminal proceedings. In proceedings regarding criminal offences against sexual integrity, minors must, from the initiation of the criminal proceedings onwards, have counsel to protect their rights. Under-age victims who have no lawyer are assigned one by the trial court. Moreover, the defendant cannot be present during the examination of witnesses below the age of 15 years who claim to be victims of criminal offences against sexual integrity. In this regard, section 240 of the Act provides that minors, especially those who have been affected by the criminal offence, should be examined with consideration for their age, to avoid any harmful effects on their mental state. 61. In order to ensure the smooth running of a judicial investigation, the parties and the victim may, under section 191 of the Criminal Procedure Act 1994, complain to the president of the court charged with the investigation about any delays or other irregularities. Upon the examination of the complaint, the president is required to inform the complainant of any steps taken in this regard. 62. As to the time frame for scheduling a criminal trial, section 286(2) of the Criminal Procedure Act provides that the presiding judge shall schedule a first hearing within two months of receipt of an indictment. If he fails to do so, he must inform the president of the court accordingly, and the latter is required to take the necessary steps to schedule a hearing. 63. As regards the conduct of the hearing, section 295 of the Criminal Procedure Act provides that the public may be excluded from the hearing if so required, for example for the protection of the personal or family life of the defendant or the victim. In accordance with section 299 of the Act, the presiding judge conducts the hearing, grants the parties the right to address the court, and questions the defendant, witnesses and experts. Moreover, it is the presiding judge’s duty to ensure that the case is presented fully and clearly, that the truth is established, and that any obstacles protracting the proceedings are eliminated. 64. The defendant may be temporarily removed from the courtroom if a witness refuses to testify in his presence. The witness’s statement is then read to him and he is entitled to put questions to him or her. Nonetheless, pursuant to section 334(2) of the Criminal Procedure Act the presiding judge will prohibit any questions that have already been asked, that bear no relation to the case, or that in themselves suggest how they should be answered. B. Relevant domestic civil law and practice 1. Civil action for compensation 1. Civil action for compensation 1. Civil action for compensation 65. Article 148 of the Code of Obligations regulating the liability of legal persons for damage inflicted by one of their subsidiary bodies, which also applies to the determination of the State’s liability for damages, provides that a legal person is liable for damage inflicted on a third party by one of its subsidiary bodies in the exercise of its functions or in connection therewith. In order for a claimant to be awarded compensation for damage inflicted by the State, he or she is required to prove all four elements of the State’s liability, that is, unlawfulness of the State’s action, existence of damage, causal link, and negligence or fault on the part of the State. 66. By virtue of Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded in the event of the infringement of a person’s personality rights, as well as for physical distress, mental distress suffered due to the reduction of life activities, disfigurement, defamation, death of a close relative, or fear, provided that the circumstances of the case, and in particular the level and duration of the distress and fear caused thereby, justify an award. 67. According to the decision of the Supreme Court no. II Ips 305/2009, an award of compensation for non-pecuniary damage is strictly limited to the categories of damage specified in the Code of Obligations, adhering to the principle of numerus clausus. The Supreme Court thus decided that non-pecuniary damage resulting from excessive length of proceedings could not be classified among the categories of damage recognised by the Code of Obligations, as the right to trial within a reasonable time could not be interpreted as a personality right. 2. Protection of the Right to a Hearing without Undue Delay Act of 2006 (“the 2006 Act”) 68. Under section 1 of the 2006 Act, any party to court proceedings – including a victim of a criminal offence – is guaranteed the right to have his or her rights decided upon by the court without undue delay. C. Relevant international law 69. 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 provides that victims of crime should be treated with compassion and respect for their dignity (Annex, Article 4). Moreover, the responsiveness of judicial and administrative processes to the needs of victims should be facilitated by, inter alia, taking measures to minimise inconvenience to victims, protecting their privacy when necessary, and ensuring that they and their families and witnesses on their behalf are protected from intimidation and retaliation (Annex, Article 6 (d)). 70. Victims of criminal offences further enjoy protection under the legislation of the European Union. In 2001, a Council Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA) was adopted with a view to introducing minimum standards on the rights and protection of victims of crime. Article 2 of the Framework Decision requires the Member States to ensure that victims have a real and appropriate role in its criminal legal system and that they are treated with due respect for the dignity of the individual during proceedings. Moreover, Article 3 provides that victims must be afforded the possibility to be heard during proceedings and to supply evidence; however, appropriate measures must be taken to ensure that they are questioned by the authorities only in so far as necessary for the purpose of criminal proceedings. Article 8 requires the Member States to provide a number of measures aimed at protecting the victims’ safety and privacy in the criminal proceedings. Among others, measures must be taken to ensure that contact between victims and offenders within courts premises may be avoided, unless such is required in the interests of the criminal proceedings. Also, the Member States must ensure that, where there is a need to protect victims – particularly those most vulnerable – from the effects of giving evidence in open court, they may be entitled to testify in a manner which enables this objective to be achieved, by any appropriate means compatible with its basic legal principles. 71. Moreover, the EU Member States’ ambition to reinforce the rights of the victims of crime led to the adoption, on 25 October 2012, of the Directive of the European Parliament and of the Council (2012/29/EU) establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. The relevant part of the Directive, which is to be implemented into the national laws of the EU Member States by 16 November 2015, provides as follows: Recital 19 “A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them ...” Article 20 – Right to protection of victims during criminal investigations “Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations: (a) interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority; (b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation; ... (d) medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.” Article 22 – Individual assessment of victims to identify specific protection needs “1. Member States shall ensure that victims receive a timely and individual assessment, in accordance with national procedures, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings, as provided for under Articles 23 and 24, due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. 2. The individual assessment shall, in particular, take into account: (a) the personal characteristics of the victim; (b) the type or nature of the crime; and (c) the circumstances of the crime. 3. In the context of the individual assessment, particular attention shall be paid to victims who have suffered considerable harm due to the severity of the crime; victims who have suffered a crime committed with a bias or discriminatory motive which could, in particular, be related to their personal characteristics; victims whose relationship to and dependence on the offender make them particularly vulnerable. In this regard, victims of terrorism, organised crime, human trafficking, gender-based violence, violence in a close relationship, sexual violence, exploitation or hate crime, and victims with disabilities shall be duly considered. ...” Article 23 – Right to protection of victims with specific protection needs during criminal proceedings “1. Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings. 2. The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1): ... (b) interviews with the victim being carried out by or through professionals trained for that purpose; ... 3. The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings: (a) measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology; (b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology; (c) measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and (d) measures allowing a hearing to take place without the presence of the public.” 72. On 5 May 2011 the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence, which entered into force on 1 August 2014. The Convention was signed by Slovenia on 8 September 2011, but has not yet been ratified. The relevant part of the Convention provides as follows: Article 49 – General obligations “1. Parties shall take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings. 2. Parties shall take the necessary legislative or other measures, in conformity with the fundamental principles of human rights and having regard to the gendered understanding of violence, to ensure the effective investigation and prosecution of offences established in accordance with this Convention.” Article 54 – Investigations and evidence “Parties shall take the necessary legislative or other measures to ensure that, in any civil or criminal proceedings, evidence relating to the sexual history and conduct of the victim shall be permitted only when it is relevant and necessary.” Article 56 – Measures of protection “1. Parties shall take the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and judicial proceedings, in particular by: (a) providing for their protection, as well as that of their families and witnesses, from intimidation, retaliation and repeat victimisation; (b) ensuring that victims are informed, at least in cases where the victims and the family might be in danger, when the perpetrator escapes or is released temporarily or definitively; (c) informing them, under the conditions provided for by internal law, of their rights and the services at their disposal and the follow ‐ up given to their complaint, the charges, the general progress of the investigation or proceedings, and their role therein, as well as the outcome of their case; (d) enabling victims, in a manner consistent with the procedural rules of internal law, to be heard, to supply evidence and have their views, needs and concerns presented, directly or through an intermediary, and considered; (e) providing victims with appropriate support services so that their rights and interests are duly presented and taken into account; (f) ensuring that measures may be adopted to protect the privacy and the image of the victim; (g) ensuring that contact between victims and perpetrators within court and law enforcement agency premises is avoided where possible; (h) providing victims with independent and competent interpreters when victims are parties to proceedings or when they are supplying evidence; (i) enabling victims to testify, according to the rules provided by their internal law, in the courtroom without being present or at least without the presence of the alleged perpetrator, notably through the use of appropriate communication technologies, where available. 2. A child victim and child witness of violence against women and domestic violence shall be afforded, where appropriate, special protection measures taking into account the best interests of the child.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 73. The applicant complained under Articles 3 and 8 of the Convention that the criminal proceedings concerning the sexual assaults against her had been at variance with the respondent State’s positive obligation to provide effective legal protection against sexual abuse, as they had been unreasonably delayed, lacked impartiality, and had exposed her to several traumatic experiences by violating her personal integrity. Moreover, the applicant claimed not to have had an effective remedy in respect of her complaints, as required by Article 13 of the Convention. 74. Having regard to the nature and the substance of the above complaints, the Court considers that the alleged delays and bias of the domestic courts fall to be examined solely under Article 3 of the Convention (see P.M. v. Bulgaria, no. 49669/07, § 58, 24 January 2012), which reads as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 75. The applicant’s remaining complaints regarding the lack of protective measures afforded to her in the criminal proceedings raise certain questions about the scope of the State’s obligation to protect victims of crime appearing as witnesses in criminal proceedings. In the specific circumstances of the present case, the Court takes the view that these issues should be considered under Article 8 of the Convention, which reads 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.” A. Admissibility 1. Non-exhaustion of domestic remedies 1. Non-exhaustion of domestic remedies 1. Non-exhaustion of domestic remedies 76. The Government argued that the applicant had failed to exhaust domestic remedies because she had not brought an action against the State for compensation for non-pecuniary damage caused by the State authorities based on Articles 148 and 179 of the Code of Obligations. According to the Government, any unlawful conduct on the part of the authorities could potentially constitute a violation of an individual’s personality rights. In support of their submissions, they cited eight decisions of the Supreme Court adopted between 1999 and 2009, and three decisions of the Ljubljana Higher Court of 2010 and 2011, showing that the State had in some cases been found by the domestic courts to be liable for damages related to the work of its employees and the exercise of their powers. Moreover, the Government submitted several decisions of the Supreme Court, the Ljubljana Higher Court, and the Maribor Higher Court, adopted between 1992 and 2011, in which a wide range of rights, such as the rights to personal dignity, to physical and mental integrity, to family life, to a healthy living environment, to personal liberty, to respect for the deceased and to the inviolability of the home, had been considered personality rights by the courts, and their unlawful infringement had been found to cause mental distress warranting compensation. 77. The applicant challenged the Government’s arguments, observing that non-pecuniary damages could only be claimed under Article 179 of the Code of Obligations in cases falling under one of the categories listed therein, and that there was no indication that the domestic courts considered the positive obligations of the State as belonging to one of these categories or, specifically, as personality rights. The applicant pointed out that the case-law submitted by the Government was not relevant to her case, and concluded that the remedy proposed by the Government was not established in practice. Moreover, the applicant took the view that in cases such as hers the protection afforded by civil law was insufficient, since an award of compensation could not satisfy the procedural requirements of Articles 3 and 8 of the Convention. 78. The Court notes that the Government raised a similar objection of non-exhaustion of domestic remedies based on the alleged availability of a civil action for compensation already in W. v. Slovenia (no. 24125/06, §§ 75-77, 23 January 2014). In that case, the Court found that all of the domestic decisions advanced by the Government related to substantive rights and not to rights arising from the State’s positive obligation to conduct an effective investigation and criminal trial. Thus, it held that the action for compensation had not offered the applicant reasonable prospects of success, and rejected the Government’s objection. Having regard also to the strict interpretation of categories of legally recognised non-pecuniary damage in the jurisprudence of the domestic courts (see paragraph 67 above), the Court sees no reason to depart from the conclusion reached in W. v. Slovenia. 79. Neither is the Court convinced that an action for compensation against the State offered the applicant effective relief in respect of the full range of her complaints of psychological trauma incurred as a result of her personal cross-examination by the defendant, the participation in the proceedings of the defendant’s counsel who had allegedly previously been consulted by her on the same matter, and the allegedly inappropriate questioning by the expert in gynaecology. In this connection, the Court notes that in domestic compensation proceedings the applicant would have been required to prove, among other things, that the alleged deficiencies were unlawful in terms of domestic law in order to be entitled to compensation (see paragraph 66 above, and L.M. v. Slovenia, no. 32863/05, §§ 168-69, 12 June 2014). However, it appears that the involvement of the defendant’s counsel in the proceedings was not contrary to domestic law (see paragraphs 29 above and 91 below). Moreover, the case-law submitted by the Government does not indicate whether the scope of the State’s liability extends to the conduct of court-appointed expert witnesses. 80. Having regard to the foregoing considerations, the Court rejects the Government’s objection of non-exhaustion of domestic remedies. 2. Lack of victim status 81. The Government argued that the applicant was precluded from raising the issue of promptness of the investigation and the ensuing trial, as an out-of-court settlement had been reached awarding her compensation under the 2006 Act (see paragraph 57 above). 82. The applicant pointed out that the settlement concerned only a violation of her rights under Article 6 of the Convention, and that the 2006 Act did not apply to complaints of violations of the rights protected under Articles 3 and 8 of the Convention. 83. Although the Court does not exclude the possibility that the compensation awarded pursuant to this Act – which is in principle aimed at remedying violations of the right to trial within a reasonable time – may provide effective redress for the breach of the State’s procedural requirements under other Convention provisions (see W. v. Slovenia, cited above, § 76), it does not appear that in the present case the breach of Article 3 was acknowledged at the domestic level (see, conversely, ibid., § 78). Moreover, it is not clear whether the compensation only applied to the trial stage of the proceedings or also covered the investigation stage. In this light, the Court considers that the award of compensation did not deprive the applicant of her victim status with regard to the delays in the criminal proceedings. 3. Conclusion 84. 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 1. The parties ’ submissions (a) The applicant (a) The applicant 1. The parties ’ submissions (a) The applicant (a) The applicant (a) The applicant 85. The applicant alleged that the investigation of the sexual assaults on her and the ensuing judicial proceedings had been unreasonably delayed and ineffective, the authorities having been biased against her due to her Ukrainian origin. Firstly, she contended that the Maribor Police had left the investigation of her complaints dormant for a year, and had only sent a report to the Maribor District State Prosecutor’s Office when urged to do so by the Prosecutor’s Office. Moreover, the Maribor District Court had not conducted the trial in compliance with the time-limits set out in the domestic legislation. In this connection, the applicant also maintained that it had not been her responsibility to attempt to accelerate the course of judicial proceedings. 86. Secondly, the Maribor District Court had refused to call important witnesses or to appoint a new expert in orthopaedics in order to clarify whether X’s disability had in fact prevented him from performing the acts of force alleged by the applicant. Also, the court had lacked impartiality, relying predominantly on the orthopaedics report, which was based on the assumption that the applicant had been capable of actively defending herself. Moreover, that report was at variance with certain other evidence showing that X may not have been completely without the use of his left arm. 87. Further, the applicant complained that the State had failed to protect her personal integrity during the proceedings. In this connection, she asserted that the expert in gynaecology B. had exceeded the scope of his duty and, instead of answering the investigating judge’s question regarding the probability of sexual intercourse, had set out to discover whether a criminal offence had been committed, asking the applicant a number of questions which had put her in the position of having to defend herself against him (see paragraph 22 above). 88. Moreover, although the applicant had been questioned during the investigation, she had subsequently had to testify at four hearings before the Maribor District Court at which the defendant had been allowed personally to torment her with numerous provocative and repetitive questions, despite the fact that he was legally represented and those questions could have been asked by his counsel. This questioning had caused her intense psychological suffering; she had felt frustrated, humiliated and helpless. Moreover, the defendant had been represented by a lawyer to whom she had previously spoken about the events in issue and was therefore in a position to misuse or even abuse the information received. In this connection, the applicant, relying on the Court’s case-law, and in particular the judgments in the cases of Doorson v. the Netherlands (26 March 1996, Reports of Judgments and Decisions 1996 ‑ II); Van Mechelen and Others v. the Netherlands (23 April 1997, Reports 1997 ‑ III); and S.N. v. Sweden (no. 34209/96, ECHR 2002 ‑ V), maintained that the domestic legislation did not provide for the accused’s rights of defence under Article 6 of the Convention to be weighed against the personal integrity and privacy of the victims protected by Articles 3 and 8. According to the applicant, her trauma had caused her severe and permanent psychological difficulties which had also led to her immune system being compromised. Lastly, the applicant complained that the domestic legislation had not afforded her an effective remedy in respect of her complaints. (b) The Government 89. The Government argued that the investigation of the alleged sexual assaults on the applicant and the ensuing trial had been effective. The police had questioned the applicant and X, as well as all the relevant witnesses, and, according to the Government, there was no proof that the criminal complaint would not have been forwarded to the Prosecutor’s Office had it not been for the latter’s intervention. The judicial investigation had been duly conducted and followed by an indictment against X. 90. The Government also maintained that the trial had been conducted without bias. With regard to the orthopaedics report allegedly contradicted by other evidence, they pointed out that the report had been based on medical documentation and a clinical examination of X, and had contained no contradictions or deficiencies capable of raising doubts as to its accuracy. Since the alleged acts of sexual abuse had not been seen by any witnesses, nor had they been supported by the results of gynaecological examinations, the Maribor District Court had acquitted X. While it was true that the applicant had shown symptoms of sexual abuse, the court could not disregard the fact that another set of criminal proceedings had been pending at the time against another person suspected of having sexually abused the applicant, which had not been taken into account in the preparation of the opinion by the expert in psychology. Secondly, the Government argued that the expert in gynaecology had not “questioned” the applicant, but had had a conversation with her outside the court hearing. In the Government’s opinion, the applicant could have asked for the expert to be sanctioned if she had believed that he was not performing his work in an appropriate manner. 91. Further, as regards X’s court-appointed counsel M., the Government argued that, X having been entitled to mandatory representation, the Maribor District Court had followed the statutory provisions regulating court-ordered appointments. Moreover, in her application to have M. disqualified from representing X the applicant had failed to adduce any grounds which, under the domestic law, would justify a decision in her favour; thus, the court had had no duty to hear the parties on the matter. The Government added that the fact that M. had once worked for a law firm representing the applicant’s mother’s husband in divorce proceedings did not give rise to the conclusion that M. should not have defended X. 92. Moreover, the Government asserted that a number of measures had been adopted, both during the investigation and at the trial, in order to prevent aggravation of the applicant’s trauma. During the investigation, the applicant had been questioned in the absence of X and his counsel. Thus, the trial hearing had been the first opportunity for the defendant to put questions to the applicant, and consideration had to be given to the fact that she had been the only witness to X’s alleged criminal acts. In this connection, the Government were of the view that the applicant’s case had not warranted a limitation of the defendant’s rights of defence to the extent that would prevent him from cross-examining her. They pointed out that the present case differed from Doorson, Van Mechelen and Others and S.N. v. Sweden, as the applicant’s safety had not been at stake, nor had she been a minor. However, the Government emphasised that the Maribor District Court had excluded the public from the hearing and removed X from the courtroom during the applicant’s testimony. After the applicant had given her testimony, the court had granted her request for the defendant to cross-examine her at the next hearing. 93. In this connection, the Government pointed out that X had not been allowed to ask the applicant certain questions that were not related to the case or were otherwise prohibited. Moreover, the court had on several occasions ordered breaks to be taken during the applicant’s cross-examination; the Government asserted that the applicant could have requested further breaks if she had considered that necessary. Also, the applicant had been represented by a lawyer throughout the proceedings. 94. Lastly, as regards the delays in the proceedings the Government pointed out that during the investigation stage of the proceedings the applicant could have complained about the delays to the president of the competent court (see paragraph 61 above), but had not done so. The Government did, however, acknowledge that the applicant had lodged two supervisory appeals under the 2006 Act (see paragraphs 33 and 52 above). The Maribor District Court had responded appropriately on both occasions: the first time a hearing had been scheduled within a month, while the second time the reasoning of the judgment had been prepared and sent to the applicant within a few days of the appeal. It was true that the trial hearing had been adjourned nine times for various reasons; however, only the first time had the hearing been adjourned for a longer period, and this had been on account of X’s illness. The Government further maintained that the large quantity of evidence that needed to be taken had also contributed to the overall duration of the trial. 2. The Court ’ s assessment (a) The State ’ s positive obligation to investigate and prosecute cases of sexual abuse (a) The State ’ s positive obligation to investigate and prosecute cases of sexual abuse (a) The State ’ s positive obligation to investigate and prosecute cases of sexual abuse 95. The relevant principles concerning the State’s obligation inherent in Article 3 of the Convention to investigate cases of ill-treatment, and in particular sexual abuse, committed by private individuals, are set out in M.C. v. Bulgaria (no. 39272/98, §§ 149, 151 and 153, ECHR 2003 ‑ XII). 96. As regards the Convention requirements relating to the effectiveness of an investigation, the Court has held that it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, such as witness testimony and forensic evidence, and a requirement of promptness and reasonable expedition is implicit in this context (see Denis Vasilyev v. Russia, no. 32704/04, § 100, 17 December 2009, with further references). The promptness of the authorities’ reaction to the complaints is an important factor (see Labita v. Italy [GC], no. 26772/95, §§ 133 et seq., ECHR 2000-IV). Consideration has been given in the Court’s judgments to matters such as the opening of investigations, delays in identifying witnesses or taking statements (see Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 88 and 93, 2 November 2010), the length of time taken for the initial investigation (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001), and unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (see Angelova and Iliev v. Bulgaria, no. 55523/00, §§ 101-103, 26 July 2007 ). Moreover, notwithstanding its subsidiary role in assessing evidence, the Court reiterates that 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 Cobzaru v. Romania, no. 48254/99, § 65, 26 July 2007). 97. The applicant alleged that X’s acquittal was the result of the domestic courts’ bias against her, claiming that their findings were based on inaccurate assumptions and that they had neglected to call important witnesses. In this connection, the Court observes that the domestic courts were faced with the difficult task of having to decide on a sensitive issue of sexual abuse on the basis of irreconcilable statements and without any physical evidence supporting either the applicant’s or X’s version of the events. In the course of the investigation and the ensuing trial, the domestic authorities examined a number of witnesses and received three expert reports in attempts to elucidate the situation. While the two gynaecological reports neither confirmed nor disproved the applicant’s allegations (see paragraphs 22, 42 and 44 above), the other two expert reports resulted in contradictory conclusions. The expert in clinical psychology established that the applicant clearly showed symptoms of sexual abuse (see paragraphs 23 and 43 above). On the other hand, the expert in orthopaedics was of the view that, owing to his disability, X lacked sufficient strength to overpower the applicant. After weighing up that contradictory evidence, and having regard to the possibility that the applicant’s symptoms were caused by inappropriate conduct on the part of her mother’s former husband, the domestic courts were convinced by the opinion of the orthopaedics expert. 98. The Court notes that, contrary to the applicant’s argument, it does not appear that the expert’s conclusions relied on an assumption as to whether or not the applicant was able to resist actively (see paragraph 49 above), but rather on the limits of X’s physical abilities, the expert stating that X could not have used his left arm in some of the ways described by the applicant. Indeed, it appears that this opinion was decisive for the outcome of the trial; however, having regard to the considerable body of evidence considered by the first-instance court in addition to the statements made by the applicant and X (see paragraphs 39 and 43-49 above), and to the fact that it was essentially the latter’s word against the applicant’s, the Court does not consider it unreasonable that the Maribor District Court refused to admit additional evidence or that it considered objective medical evidence of X’s disability as a crucial factor in its assessment. 99. However, the Court notes with concern that the proceedings were marked by a number of longer periods of complete inactivity. Firstly, the police did not submit an incident report of the applicant’s complaint to the competent state prosecutor’s office until a full year after their investigation had been concluded, and only on being urged by the prosecutor to do so (see paragraphs 12-14 above). The State prosecutor then promptly requested that a judicial investigation be initiated against X (see paragraph 15 above); however, the investigating judge took twenty-one months to decide on the request (see paragraphs 16-17 above). Once the investigation was concluded, the trial hearing was scheduled eight months after the indictment against X had been confirmed (see paragraph 25 above), in contravention of the domestic procedural rules (see paragraph 62 above). However, owing to several adjournments the first hearing was actually held almost a year and a half after X had been indicted. In sum, more than seven years elapsed from the time the applicant lodged her complaint until the first-instance judgment was rendered. While it is not possible to speculate whether these delays, for which no justification has been put forward by the Government, prejudiced the outcome of the proceedings in any way, in the Court’s opinion they cannot be reconciled with the procedural requirement of promptness. 100. Accordingly, there has been a violation of the respondent State’s procedural obligations under Article 3 of the Convention. (b) The protection of the applicant ’ s personal integrity in the criminal proceedings concerning sexual abuse against her 101. The Court is called upon to examine whether in the criminal proceedings concerning alleged sexual assaults against the applicant the State afforded sufficient protection to her right to respect for private life, and especially for her personal integrity. Thus, what is in issue is not an act by the State, but the alleged lack or inadequacy of measures aimed at protecting the victim’s rights in the criminal proceedings. In this connection the Court reiterates that while the essential object of Article 8 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 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). 102. 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 White v. Sweden, no. 42435/02, § 20, 19 September 2006). 103. As regards the conflicts between the interests of the defence and those of witnesses in criminal proceedings, the Court has already held on several occasions that criminal proceedings should be organised in such a way as not to unjustifiably imperil the life, liberty or security of witnesses, and in particular those of victims called upon to testify, or their interests coming generally within the ambit of Article 8 of the Convention. Thus, the interests of the defence are to be balanced against those of witnesses or victims called upon to testify (see Doorson, cited above § 70). Notably, criminal proceedings concerning sexual offences are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly confronted with the defendant. These features are even more prominent in a case involving a minor. Therefore, in such proceedings certain measures may be taken for the purpose of protecting the victim, provided that they can be reconciled with an adequate and effective exercise of the rights of the defence (see S.N. v. Sweden, cited above, § 47, and Aigner v. Austria, no. 28328/03, § 35, 10 May 2012). 104. In the cases hitherto before the Court, the question of whether the domestic authorities succeeded in striking a fair balance between the competing interests of the defence, especially the right of the accused set out in Article 6 § 3 (d) to call and cross-examine witnesses, and the rights of the victims under Article 8 was raised by the accused. Conversely, in the present case the Court is called upon to examine this issue from the perspective of the alleged victim. In addressing the question, the Court will take into account the criteria laid down in the relevant international instruments (see paragraphs 69-72 above). In this connection, the Court notes that the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence requires the Contracting Parties to take the necessary legislative and other measures to protect the rights and interests of victims. Such measures involve, inter alia, protection from intimidation and repeat victimisation, enabling victims to be heard and to have their views, needs and concerns presented and duly considered, and enabling them, if permitted by applicable domestic law, to testify in the absence of the alleged perpetrator. In addition, the EU Directive establishing minimum standards on the rights, support and protection of victims of crime provides, inter alia, that interviews with victims are to be conducted without unjustified delay and that medical examinations are to be kept to a minimum. 105. As regards the manner in which the applicant’s rights were protected in the criminal proceedings in issue, the Court observes, firstly, that her testimony at the trial provided the only direct evidence in the case. In addition, other evidence presented was conflicting, the psychologist’s report confirming sexual abuse being countervailed by the orthopaedics report. In this light, it must be reiterated that the interests of a fair trial required the defence to be given the opportunity to cross-examine the applicant, who by that time was no longer a minor. Nevertheless, it needs to be determined whether the manner in which the applicant was questioned struck a fair balance between her personal integrity and X’s defence rights. 106. In this connection the Court reiterates that, as a rule, the defendant’s rights under Article 6 §§ 1 and 3 (d) require that he be given an adequate and proper opportunity to challenge and question a witness against him either when he makes his statements or at a later stage of the proceedings (see Saïdi v. France, 20 September 1993, § 43, Series A no. 261 ‑ C, and A.M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX). Furthermore, the Court must be cautious in making its own assessment of a specific line of questioning, considering that it is primarily the role of the competent national authorities to decide upon the admissibility and relevance of evidence (see Schenk v. Switzerland, 12 July 1988, § 46, Series A no. 140, and Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22). This being said, the Court has also already held that a person’s right to defend himself does not provide for an unlimited right to use any defence arguments (see, mutatis mutandis, Brandstetter v. Austria, 28 August 1991, § 52, Series A no. 211). Thus, since a direct confrontation between the defendants charged with criminal offences of sexual violence and their alleged victims involves a risk of further traumatisation on the latter’s part, in the Court’s opinion personal cross-examination by defendants should be subject to most careful assessment by the national courts, the more so the more intimate the questions are. 107. The applicant’s questioning stretched over four hearings (see paragraphs 31, 32, 34-38 and 40 above) held over seven months, a lengthy period, which, in the Court’s opinion, in itself raises concerns, especially given the absence of any apparent reason for the long intervals between the hearings. Moreover, at two of those hearings X, the defendant, who was otherwise represented by counsel throughout the proceedings, personally cross-examined the applicant. In addition to claiming that he was physically incapable of assaulting her, X based his cross-examination on the premise that the applicant had considered him a person of trust and had sought his company, rather than the other way round, and that her accusations against him were prompted by her mother’s wish to extort money from him. Accordingly, most of X’s questions were of a distinctly personal nature. 108. The Court notes that some of the questions asked by X were phrased in such a manner as to suggest the answers, and a number of others were asked more than once (see paragraphs 34 and 36 above). X also continually contested the veracity of the applicant’s answers, advancing his own version of events. Of course, the defence had to be allowed a certain leeway to challenge the reliability and credibility of the applicant and to reveal possible inconsistencies in her statement. However, the Court considers that cross-examination should not be used as a means of intimidating or humiliating witnesses. In this connection, the Court is of the view that some of X’s questions and remarks suggesting, without any evidentiary basis, that the applicant could cry on cue in order to manipulate people, that her distress might be eased by having dinner with him, or that she had confided in him her desire to dominate men, were not aimed only at attacking the applicant’s credibility, but were also meant to denigrate her character. 109. The Court considers that it was first and foremost the responsibility of the presiding judge to ensure that respect for the applicant’s personal integrity was adequately protected at the trial. In its opinion, the sensitivity of the situation in which the applicant was questioned directly, in detail and at length by the man she accused of sexually assaulting her, required the presiding judge to oversee the form and content of X’s questions and comments and, if necessary, to intervene. Indeed, the record of the hearing indicates that the presiding judge prohibited X from asking certain questions which were of no relevance to the case. However, the Court takes the view that X’s offensive insinuations about the applicant also exceeded the limits of what could be tolerated for the purpose of enabling him to mount an effective defence, and called for a similar reaction. Considering the otherwise wide scope of cross-examination afforded to X, in the Court’s opinion curtailing his personal remarks would not have unduly restricted his defence rights. Yet such an intervention would have mitigated what was clearly a distressing experience for the applicant (see paragraphs 37 and 38 above). 110. Further, as regards the applicant’s assertion that X’s counsel M. should have been disqualified from representing X in the proceedings, having been consulted by her regarding the sexual assaults even before the police were informed about the matter, it is not the Court’s task to speculate on whether, and if so in what capacity, the applicant and M. might have known each other prior to the trial, that being the task of the domestic authorities. However, it appears that under domestic law the possibility of prior informal consultation between the applicant and M. did not raise an issue of conflict of interests which could lead to the latter’s disqualification (see paragraphs 29, 31 and 40-42 above). Hence, finding that no statutory ground had been adduced by the applicant in support of her application to have M. disqualified, the Maribor District Court dismissed it. 111. Nevertheless, assuming that the applicant’s allegation was true, the Court cannot but consider that the negative psychological effect of being cross-examined by M. considerably exceeded the apprehension that the applicant would have experienced if she had been questioned by another lawyer. Accordingly, this was a consideration which should not have been entirely disregarded in deciding whether M. should be disqualified as X’s counsel. Moreover, on a more general note, the Court would add that any information that M. might have received from the applicant in his capacity as a lawyer, even without a retainer agreement, should have been treated as confidential and should not have been used to benefit a person with adverse interests in the same matter. Thus, the Court finds that the domestic law on disqualification of counsel, or the manner in which it was applied in the present case, did not take sufficient account of the applicant’s interests. 112. Lastly, the applicant complained that B., the expert in gynaecology who was called upon to establish whether she had engaged in sexual intercourse at the material time, had made her answer a number of accusatory questions unrelated to his task. In this connection, the Court considers firstly that the personal integrity of the victims of crime in criminal proceedings must, by the very nature of the situation, be primarily protected by the public authorities conducting the proceedings. In this regard, the Court is of the view that the authorities are also required to ensure that other participants in the proceedings called upon to assist them in the investigation or the decision-making process treat victims and other witnesses with dignity, and do not cause them unnecessary inconvenience. As regards the present case, it is noted that, irrespective of B.’s status in the proceedings, the Government did not dispute that the State could be held responsible for his conduct. The Court sees no reason to hold otherwise, observing that the expert was appointed by, and the disputed examination ordered by, the investigating judge in the exercise of his judicial powers. 113. Further, regarding B.’s examination of the applicant, the Court notes that he confronted the applicant with the findings of the police and orthopaedics reports, and questioned her on why she had not defended herself more vigorously (see paragraph 22 above), thus addressing issues that were indeed not related to the question he was requested to examine. In the Court’s opinion, B.’s questions and remarks, as well as the legal findings he made in his expert opinion, exceeded the scope of his task, as well as of his medical expertise. Moreover, it does not appear that B. was trained in conducting interviews with victims of sexual abuse; hence, it is difficult to see what purpose was to be served by his intervention in matters within the jurisdiction of the prosecuting and judicial authorities. More importantly, as argued by the applicant, she was put in a defensive position which, in the Court’s opinion, unnecessarily added to the stress of the criminal proceedings. 114. The Court is mindful of the fact that the domestic authorities, and in particular the judge presiding over the trial in issue, had the delicate task of balancing the competing interests and of ensuring effective exercise of the defendant’s rights to legal assistance and to examine witnesses against him. It is also true that a number of measures were taken to prevent further traumatisation of the applicant. Her statement before the investigating judge was taken in the absence of the defendant and his counsel, the public was excluded from the trial, and the defendant was removed from the courtroom when she gave her testimony (see paragraphs 18, 29, 31 and 34 above). Owing to the applicant’s stress during her testimony and cross-examination, the trial hearings were on several occasions adjourned for a few minutes or rescheduled to another date (see paragraphs 31, 37 and 38 above). Furthermore, the presiding judge warned the defendant against repeating questions in cross-examination and prohibited a number of them (see paragraph 36 above). Nevertheless, in the Court’s opinion, the pre-existing relationship between the applicant and the defendant and the intimate nature of the subject matter, as well as the applicant’s young age – she was a minor when the alleged sexual assaults took place – were points of particular sensitivity which called for a correspondingly sensitive approach on the part of the authorities to the conduct of the criminal proceedings in issue. Taking into account the cumulative effect of the factors analysed above, which adversely affected the applicant’s personal integrity (see paragraphs 107-13 above), the Court considers that they substantially exceeded the level of discomfort inherent in giving evidence as a victim of alleged sexual assaults, and accordingly cannot be justified by the requirements of a fair trial. 115. Therefore, the Court is of the view that the manner in which the criminal proceedings were conducted in the present case failed to afford the applicant the necessary protection so as to strike an appropriate balance between her rights and interests protected by Article 8 and X’s defence rights protected by Article 6 of the Convention. 116. It follows that there has been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 118. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage, arguing that the sexual assaults and the secondary victimisation she had endured in the criminal proceedings had severely affected her psychological health and caused her mental anguish and distress. The applicant submitted that during the proceedings she had suffered from depression, anxiety, and inability to concentrate, necessitating psychiatric help; she had even come to the hearings accompanied by her psychiatrist. Moreover, she had subsequently become afflicted with multiple sclerosis. 119. The Government took the view that the applicant had not shown causal links between her health problems and the alleged violations of the Convention. Moreover, they maintained that, were the Court to find a violation of the applicant’s Convention rights and award the applicant just satisfaction, it should be taken into account that the applicant had already received monetary compensation in the amount of EUR 1,080 from the State for the violation of her right to trial within a reasonable time. 120. Having regard to the medical certificate issued by the applicant’s psychiatrist in 2010, the psychological distress experienced by the applicant in that period could, at least in part, be attributed to the criminal proceedings in issue which, as found by the Court, lacked effectiveness and disproportionately interfered with the applicant’s personal integrity. Thus, the Court considers that some compensation should be awarded to the applicant for non-pecuniary damage in that respect. However, the Court notes that the domestic courts did not find the applicant’s allegations of sexual assaults to have been established. Neither can the Court speculate as to whether the outcome of the domestic proceedings would have been different had there been no breach of the Convention. Accordingly, it considers that no award can be made to the applicant in respect of that claim. 121. As regards the Government’s objection that compensation was awarded to the applicant at the domestic level, it is true that the applicant received EUR 1,080 from the State for the excessive length of the criminal proceedings in issue. However, as it does not appear that the out-of-court settlement also covered the State’s positive obligations under Article 3 (see paragraph 83 above) and, consequently, this award had no bearing on the applicant’s victim status under that provision (see, conversely, W. v. Slovenia, cited above, § 91), it cannot be taken into consideration in determining the amount of compensation to be awarded under Article 41 in respect of the violations found by the Court. 122. Making an assessment on an equitable basis, the Court awards the applicant EUR 9,500 in respect of non-pecuniary damage. B. Costs and expenses 123. The applicant also claimed EUR 7,462.50, plus VAT at 20%, amounting to a total of EUR 8,955 for costs and expenses incurred before the Court. 124. The Government contended that the claim was disproportionately high in comparison to the amounts that could be charged with regard to the costs of proceedings before the Strasbourg Court in accordance with the national Lawyers’ Fees Act. The maximum fee stipulated in that Act for the proceedings in issue amounted to EUR 2,625 if a hearing was held before the Court and EUR 1,500 if there was no hearing. 125. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 4,000, not including VAT, for the proceedings before the Court. As regards the claim that the amount should be increased by the rate of VAT, the Court reiterates that, although costs and expenses are frequently subject to value-added tax paid to the State by lawyers, translators and other professionals, the tax is nevertheless billed to the applicants and is ultimately payable by them. Applicants should be protected against this additional charge. For this reason alone, in the operative part of its judgments the Court directs that any tax that may be chargeable to the applicant is to be added to the sums awarded in respect of costs and expenses (see Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 127, ECHR 2014, and Association Les Témoins de Jéhovah v. France (just satisfaction), no. 8916/05, § 37, 5 July 2012 ). C. Default interest 126. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of the State’s procedural obligations under Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding in particular that, while it was impossible to speculate whether the fact that it took more than seven years between the applicant’s lodging her complaint and the rendering of the first-instance judgment had prejudiced the outcome of the proceedings, such a delay could not be reconciled with the requirements of promptness. The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that the Slovene authorities had failed to protect the applicant’s personal integrity during the criminal investigation and trial. In particular, they should have prevented the alleged assailant from using offensive and humiliating remarks while cross-examining her during the trial. The authorities had admittedly taken a number of measures to prevent the applicant from being traumatised further. However, given the sensitivity of the matter and her young age at the time when the alleged sexual assaults had taken place, a particularly sensitive approach would have been required. As regards in particular the nature of the cross-examination by the defendant himself, the Court noted that, while the defence had to be allowed a certain leeway to challenge the applicant’s credibility, cross-examination should not be used as a means of intimidating or humiliating witnesses. |
507 | General prohibition of discrimination | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW 31. The relevant provisions of the Equal Opportunity Act (Law no. 202/2002) read as follows: Article 6 “(5) The following actions do not constitute discrimination: (a) special measures provided for by law for the protection of maternity, birth, the postnatal period, breastfeeding and child-rearing; (b) positive actions for the protection of certain categories of women or men; ...” Article 10 “(1) Maternity cannot constitute grounds for discrimination. (2) Any less favourable treatment of a woman in connection with pregnancy or maternity leave constitutes discrimination under the present law.” 32. The relevant provisions of Government Emergency Ordinance no. 96/2003 on the protection of maternity in the workplace read as follows: Article 2 “... (g) the duration of mandatory postnatal leave is 42 days, which the worker must take after giving birth; it is included in maternity leave, which has an overall duration of 126 days for all pregnant workers, in accordance with the law; ...” Article 21 “(1) An employer shall not terminate a contract of employment in the following cases: (a) [in the case] of a [pregnant worker], for reasons directly connected to her condition; (b) [in the case] of a worker who is on leave owing to risks connected to maternity; (c) [in the case] of a worker who is on maternity leave; ...” 33. At the time of the facts of the present case, the relevant provisions of Law no. 269/2003 on the Statute of the Diplomatic and Consular Corps (“Law no. 269/2003”) read as follows: Article 3 “(1) The general provisions of labour law and those of the Statute of Civil Servants shall complement the provisions of the Statute of the Romanian Diplomatic and Consular Corps, unless otherwise stated in the present law. (2) While on posting[s] abroad, members of the diplomatic and consular corps shall also be subject to the provisions of the international treaties which Romania has entered into, and to other rules of international law.” Article 9 “(1) Promotion within the diplomatic and consular ranks shall be on the basis of time spent in service ..., the evaluation of professional activity, and qualifications obtained from the Diplomatic Academy or other institutes for continuous learning ...” Article 25 “(1) During diplomatic and consular postings abroad, members of the Romanian diplomatic and consular corps, as well as the members of their families who accompany them, shall have the benefit of medical assistance, covered by the mandatory health insurance organised by the MFA ...” Article 27 “(1) Members of the Romanian diplomatic and consular corps shall have the right to annual leave, study leave, unpaid leave, medical leave, maternity leave, [and] parental leave until a child is two years old ...” Article 35 “(1) Members of the diplomatic and consular corps ... shall be sent on permanent posting[s] abroad following a competitive examination ... (5) The length of a diplomatic posting abroad shall, in principle, be four years, and three years in countries with a difficult climate. ... (15) Vacant diplomatic and consular posts abroad which must be filled urgently ... shall be published within the central administration of [the MFA] ... after being approved by the Minister for Foreign Affairs. The Minister for Foreign Affairs shall fill these posts on a temporary basis for a period of up to 13 months, with the possibility of one extension for up to one year.” Article 48 “(1) In order to ensure the necessary specialist staff from the [MFA], secondments and temporary employment shall be possible for the duration of a permanent diplomatic posting ...” DOMESTIC PRACTICE 34. On several occasions the National Council for Combating Discrimination (“the NCCD”) has been asked to verify allegations of discrimination against pregnant workers. The NCCD found the following situations discriminatory: – the refusal to pay a pregnant worker’s salary for two months, with the intention of making her resign (decision of 18 January 2012); – the decision to retain all workers except pregnant workers in their posts, following the reorganisation of an employer company (decision of 6 February 2013); – a change in a claimant’s work situation during her short absence from work due to complications caused by her pregnancy (decision of 30 April 2014); – the summary dismissal of a visibly pregnant worker, despite the employer’s arguments that the dismissal was related to the claimant’s performance (decision of 25 January 2017); – a change of working conditions during or after a person’s return from parental leave (decisions of 7 February 2013, 16 October 2013, 4 September 2013 and 18 November 2015). 35. On the other hand, the NCCD considered that the fact that an employer had offered less complex tasks to a claimant during her pregnancy did not constitute discrimination, as that had been justified by the fact that her presence at work would be limited during her pregnancy (decision of 14 September 2016). 36. The Bucharest Court of Appeal has identified the following situations as being discriminatory on grounds of pregnancy: – offering a pregnant worker a temporary contract of employment instead of a permanent one (final decision of 14 December 2016); – giving a worker notice of her dismissal as soon as she had informed her employer of her pregnancy (final decisions of 25 June 2012 and 6 November 2012); – dismissing a pregnant worker at the end of the probationary period of an open-ended contract (final decision of 13 June 2014). 37. The Bucharest County Court examined an action seeking the annulment of a ministerial order whereby the MFA had decided to recall Mr X from his four-year posting at the embassy in Geneva before the end of the relevant term and terminate his contract of employment. The claimant had been hired for a specific position at the embassy in Geneva, but following a restructuring of the diplomatic activities, those tasks had been transferred to another embassy, in Moscow. The County Court dismissed the action on the grounds that the reason for terminating the posting had been legitimate. COUNCIL OF EUROPE MATERIALRecommendation No. R(85)2 of the Committee of Ministers Recommendation No. R(85)2 of the Committee of Ministers Recommendation No. R(85)2 of the Committee of Ministers 38. The relevant provisions of Recommendation No. R(85)2 on legal protection against sex discrimination, adopted by the Committee of Ministers of the Council of Europe on 5 February 1985 at the 380th meeting of the Ministers’ Deputies, read as follows: “... Recognising the necessity to ensure legal and de facto equality between men and women, in particular by improving the situation of women and by taking into account the specific needs of certain categories of people; ... Principles I. Promotion of equality between the sexes by legislation In order to promote equality between the sexes, legislation should aim at the following objectives: 1. In the field of employment, men and women should have equal rights with regard to opportunities for employment and conditions of employment in all fields and, in particular, should be entitled to: a. equal right of access to work; b. equal conditions of work; c. equal opportunities for training; d. equal pay for work of equal value; e. equal opportunities for advancement. ... III. Special temporary measures (positive action) States should, in those areas where inequalities exist, give consideration to the adoption of special temporary measures designed to accelerate the realisation of de facto equality between men and women, where there are no obstacles of a constitutional nature, in particular by: a. making employers aware of the desirability of having as an objective the achievement of equality between the sexes; ...” European Social Charter 39. The respondent State ratified the European Social Charter (revised) in 1999, and considered itself bound by that charter. The relevant provisions read as follows: “... Part I The Parties accept as the aim of their policy, to be pursued by all appropriate means both national and international in character, the attainment of conditions in which the following rights and principles may be effectively realised: ... 8. Employed women, in case of maternity, have the right to a special protection. ... 20. All workers have the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex. ... 27. All persons with family responsibilities and who are engaged or wish to engage in employment have a right to do so without being subject to discrimination and as far as possible without conflict between their employment and family responsibilities. ... Part II The Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs. ... Article 8 – The right of employed women to protection of maternity With a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake: 1. to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks; 2. to consider it as unlawful for an employer to give a woman notice of dismissal during the period from the time she notifies her employer that she is pregnant until the end of her maternity leave, or to give her notice of dismissal at such a time that the notice would expire during such a period; 3. to provide that mothers who are nursing their infants shall be entitled to sufficient time off for this purpose; 4. to regulate the employment in night work of pregnant women, women who have recently given birth and women nursing their infants; ... Article 20 – The right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex With a view to ensuring the effective exercise of the right to equal opportunities and equal treatment in matters of employment and occupation without discrimination on the grounds of sex, the Parties undertake to recognise that right and to take appropriate measures to ensure or promote its application in the following fields: a access to employment, protection against dismissal and occupational reintegration; b vocational guidance, training, retraining and rehabilitation; c terms of employment and working conditions, including remuneration; d career development, including promotion. ... Article 27 – The right of workers with family responsibilities to equal opportunities and equal treatment With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake: ... 2. to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice; ...” LAW AND PRACTICE OF THE EUROPEAN UNIONDirectives of the Council of the European Union Directives of the Council of the European Union Directives of the Council of the European Union 40. The matter of equality between men and women, and special protection for pregnancy, has been tackled in several directives adopted by the Council of the European Union, in particular: Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding; and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (which repealed Directive 76/207/EEC). 41. The relevant provisions of Directive 2006/54/EC read as follows: “Whereas: ... 23. It is clear from the case-law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive. 24. The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman’s biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be without prejudice to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. This Directive should further be without prejudice to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. 25. For reasons of clarity, it is also appropriate to make express provision for the protection of the employment rights of women on maternity leave and in particular their right to return to the same or an equivalent post, to suffer no detriment in their terms and conditions as a result of taking such leave and to benefit from any improvement in working conditions to which they would have been entitled during their absence. ...” Article 15 – Return from maternity leave “A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would have been entitled during her absence.” 42. The relevant provisions of Directive 92/85 read as follows: “Whereas Article 15 of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work provides that particularly sensitive risk groups must be protected against the dangers which specifically affect them; Whereas pregnant workers, workers who have recently given birth or who are breastfeeding must be considered a specific risk group in many respects, and measures must be taken with regard to their safety and health; Whereas the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not treat women on the labour market unfavourably nor work to the detriment of directives concerning equal treatment for men and women; ... Whereas the risk of dismissal for reasons associated with their condition may have harmful effects on the physical and mental state of pregnant workers, workers who have recently given birth or who are breastfeeding; whereas provision should be made for such dismissal to be prohibited; ... Whereas, moreover, provision concerning maternity leave would also serve no purpose unless accompanied by the maintenance of rights linked to the employment contract and or entitlement to an adequate allowance; ...” Article 10 Prohibition of dismissal “In order to guarantee workers, within the meaning of Article 2, the exercise of their health and safety protection rights as recognized under this Article, it shall be provided that: 1. Member States shall take the necessary measures to prohibit the dismissal of workers, within the meaning of Article 2, during the period from the beginning of their pregnancy to the end of the maternity leave referred to in Article 8 (1), save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent; 2. if a worker, within the meaning of Article 2, is dismissed during the period referred to in point 1, the employer must cite duly substantiated grounds for her dismissal in writing; 3. Member States shall take the necessary measures to protect workers, within the meaning of Article 2, from consequences of dismissal which is unlawful by virtue of point 1.” Case-law of the Court of Justice of the European Union 43. In its case-law, the Court of Justice of the European Union (hereinafter “the CJEU”) established that as only women could become pregnant, a refusal to employ a pregnant woman based on her pregnancy or her maternity, or the dismissal of a pregnant woman on such grounds, amounted to direct discrimination on grounds of sex, which could not be justified by any other interest. 44. In the Dekker judgment (8 November 1990, C ‑ 177/88, EU:C:1990:383), the CJEU ruled that a refusal to employ a woman who met the conditions for a post because she was pregnant constituted direct discrimination on grounds of sex. The applicant in the Dekker case applied for the post, was considered the most suitable candidate, but ultimately was not hired because she was pregnant. The employer argued that, in accordance with the law, she was not eligible to be paid pregnancy benefits by the relevant insurer, and thus the employer would have to pay those benefits during her maternity leave. As a result, the employer would be unable to afford to employ a replacement during her absence, and would thus be short-staffed. The CJEU found as follows. “12 In that regard it should be observed that only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. Such discrimination cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant woman would suffer for the duration of her maternity leave.” 45. In the Hertz judgment (8 November 1990, C ‑ 179/88, EU:C:1990:384), the CJEU ruled that dismissals which were the result of absences due to an illness not attributable to pregnancy or confinement did not breach the Directive on equal treatment. In that case, the applicant, who had been absent owing to illness during her pregnancy, became ill again after the end of her maternity leave. She was dismissed because of her absences. The relevant parts of that judgment read as follows: “13 It follows from the provisions of the Directive quoted above that the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex, as is a refusal to appoint a pregnant woman (see judgment of today’s date in Case C ‑ 177/88 Dekker v VJM-Centrum [1990] ECR I ‑ 3941). 14 On the other hand, the dismissal of a female worker on account of repeated periods of sick leave which are not attributable to pregnancy or confinement does not constitute direct discrimination on grounds of sex, inasmuch as such periods of sick leave would lead to the dismissal of a male worker in the same circumstances. 15 The Directive does not envisage the case of an illness attributable to pregnancy or confinement. It does, however, admit of national provisions guaranteeing women specific rights on account of pregnancy and maternity, such as maternity leave. During the maternity leave accorded to her pursuant to national law, a woman is accordingly protected against dismissal due to absence. It is for every Member State to fix periods of maternity leave in such a way as to enable female workers to absent themselves during the period in which the disorders inherent in pregnancy and confinement occur. 16 In the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness. Such a pathological condition is therefore covered by the general rules applicable in the event of illness.” 46. The CJEU further held that any unfavourable treatment directly or indirectly connected to pregnancy or maternity constituted direct sex discrimination. In the Webb judgment (14 July 1994, C-32/93, EU:C:1994:300), the CJEU found that the situation of a pregnant woman could not be compared with that of a man who was absent because of illness. The applicant in the Webb case found out that she was pregnant a few weeks after being hired to replace a worker who had herself become pregnant. She was dismissed as soon as the employer found out about her pregnancy. The CJEU ruled as follows: “24 First, in response to the House of Lords’ inquiry, there can be no question of comparing the situation of a woman who finds herself incapable, by reason of pregnancy discovered very shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons. 25 As Mrs Webb rightly argues, pregnancy is not in any way comparable with a pathological condition, and even less so with unavailability for work on non-medical grounds, both of which are situations that may justify the dismissal of a woman without discriminating on grounds of sex. Moreover, in the Hertz judgment, cited above, the Court drew a clear distinction between pregnancy and illness, even where the illness is attributable to pregnancy but manifests itself after the maternity leave. As the Court pointed out (in paragraph 16), there is no reason to distinguish such an illness from any other illness. 26 Furthermore, contrary to the submission of the United Kingdom, dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed. Any contrary interpretation would render ineffective the provisions of the directive. 27 In circumstances such as those of Mrs Webb, termination of a contract for an indefinite period on grounds of the woman’s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged ...” 47. In the Hofmann judgment (12 July 1984, C ‑ 184/83, EU:C:1984:273), which concerned paternity allowance, the CJEU found as follows: “25 It should further be added, with particular reference to paragraph (3), that, by reserving to member states the right to retain, or introduce provisions which are intended to protect women in connection with ‘pregnancy and maternity’, the directive recognizes the legitimacy, in terms of the principle of equal treatment, of protecting a woman’s needs in two respects. First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.” 48. In the Tele Danmark judgment (4 October 2001, C-109/00, EU:C:2001:513), the CJEU extended the protection for absence due to pregnancy to temporary contracts. The applicant was recruited for a six ‑ month fixed period. She failed to inform the employer that she was pregnant, even though she was aware of this when the contract was concluded. Because of her pregnancy, she was unable to work during a substantial part of the term of that contract. The relevant parts of the judgment read as follows: “29. In paragraph 26 of Webb, the Court also held that, while the availability of an employee is necessarily, for the employer, a precondition for the proper performance of the employment contract, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during the period corresponding to maternity leave is essential to the proper functioning of the undertaking in which she is employed. A contrary interpretation would render ineffective the provisions of Directive 76/207. 30. Such an interpretation cannot be altered by the fact that the contract of employment was concluded for a fixed term. 31. Since the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whatever the nature and extent of the economic loss incurred by the employer as a result of her absence because of pregnancy, whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal. In either case the employee’s inability to perform her contract of employment is due to pregnancy. 32. Moreover, the duration of an employment relationship is a particularly uncertain element of the relationship in that, even if the worker is recruited under a fixed term contract, such a relationship may be for a longer or shorter period, and is moreover liable to be renewed or extended.” In that judgment, the CJEU further found that the size of an employer was irrelevant for that matter: “37. It suffices to observe that Directives 76/207 and 92/85 do not distinguish, as regards the scope of the prohibitions they lay down and the rights they guarantee, according to the size of the undertaking concerned.” INTERNATIONAL MATERIAL 49. The relevant parts of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (“the CEDAW”), which was ratified by the respondent State on 7 January 1982, read as follows: Article 4 “1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.” Article 5 “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (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.” Article 11 “1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them. 3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.” Article 12 “1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. 2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.” THE LAW ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 12 TO THE CONVENTION Scope of the case 50. In her initial application to the Court, the applicant complained that she had been discriminated against at work, in so far as her posting at the Romanian embassy in Ljubljana had been terminated because of her pregnancy without any valid reason being presented to her. She relied on Article 1 of Protocol No. 12 to the Convention. 51. In her submissions in reply to the Government’s observations, the applicant further complained of violations of Articles 6 and 8 of the Convention as a result of the same facts which she had brought to the Court’s attention in her initial application. 52. Having regard to the substance of the applicant’s complaints, and regardless of whether the above-mentioned complaints and/or arguments raised under Articles 6 and 8 of the Convention fall to be examined within the context of the present application, the Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the application from the standpoint of Article 1 of Protocol No. 12 to the Convention alone. That provision reads as follows: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” AdmissibilityThe Court’s jurisdiction ratione materiae The Court’s jurisdiction ratione materiae The Court’s jurisdiction ratione materiae 53. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction ratione materiae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case, and the issue of the applicability of Article 1 of Protocol No. 12 falls to be examined at the admissibility stage. 54. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 53, ECHR 2009, and Baralija v. Bosnia and Herzegovina, no. 30100/18, § 45, 29 October 2019). 55. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection to not only “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This follows in particular from paragraph 2, which further provides that no one may be discriminated against by a public authority (see Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 104, 9 December 2010). According to the Explanatory Report to Protocol No. 12, the scope of protection of Article 1 of that Protocol concerns four categories of cases, in particular where a person is discriminated against: “i. in the enjoyment of any right specifically granted to an individual under national law; ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies); iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).” The Explanatory Report further clarifies the following: “... it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.” 56. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicant’s complaints fall within one of the four categories mentioned in the Explanatory Report (see Savez crkava “Riječ života” and Others, cited above, § 105). 57. In this connection, the Court notes that the domestic law regulates the organisation and duration of diplomatic postings abroad (see paragraph 33 above) but also grants, in accordance with the domestic courts’ interpretation, a discretionary power to the MFA to decide on the early termination of a diplomatic posting abroad (see paragraph 28 above). While contesting the manner in which this discretion had been exercised, the applicant did not contest its existence (see paragraph 62 below). Consequently, the Court cannot but conclude that the present case falls at least under category iii. of potential discrimination envisaged by the Explanatory Report (see paragraph 55 above). 58. It follows that Article 1 of Protocol No. 12 applies to the facts of the present case. Other grounds for inadmissibility 59. The Court further notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 60. The applicant averred that the main reason for the early termination of her posting abroad had been her pregnancy. Although her work performance had been assessed as satisfactory by the ambassador (see paragraph 20 above), her direct superior, the ambassador had requested that her posting be terminated as soon as she had announced her second pregnancy. In her view, this sequence of events indicated with certainty that her pregnancy had been the reason for the early termination of her diplomatic posting. She further objected to the remarks made by the ambassador concerning the alleged security risk posed by her husband driving her diplomatic car (see paragraph 23 above). 61. The applicant further averred that the work at the embassy had represented no danger for her pregnancy. She pointed out that she had been able to carry out her tasks without any risk while she had been pregnant the first time. Consequently, it could not be argued that in recalling her to Bucharest, the MFA had acted with a view to protecting her pregnancy. Moreover, the MFA had not demonstrated how her pregnancy would have been better protected in the office in Bucharest than in the office in Ljubljana. Moreover, the applicant argued that she had been recalled to Bucharest as a consequence of her exercising her lawful right to protection of pregnancy. 62. She considered that in terminating her posting abroad, the MFA had used its discretion in an improper and unreasonable manner. The authorities could not provide any reasons for the measure. Moreover, the Government could not prove that other diplomats who had received good evaluations from their superiors had been recalled from their postings with the explanation that the MFA no longer needed them in those posts. 63. She argued that the dysfunctionalities of the consular section of the embassy had not been caused by her pregnancy, but by the MFA’s deficient organisation as regards the replacement of diplomats who, during their posting, found themselves objectively and temporarily unable to exercise their duties as a result of unpredictable events such as medical leave. (b) The Government 64. The Government pointed out that the Romanian embassy in Ljubljana was served by a very small team of diplomats. Consequently, when the applicant had accepted the relevant position she should have been aware that she would be expected to work on a more or less permanent basis and provide emergency consular assistance to Romanian nationals who needed it. While those circumstances were not to be interpreted as placing a restraint on the applicant’s choices in her private life, they constituted a presumption that, on a professional level, she would understand that her long, repeated and unpredictable absences would affect the functioning of the embassy. Thus, she should have accepted the early termination of her posting. 65. While accepting that the applicant’s pregnancy had played a role in the decision to terminate her posting in Slovenia, the Government argued that the actual reason behind that decision had been the need to ensure the proper functioning of the consular activity. The decision had not been a disciplinary measure against the applicant, who had continued to be employed by the MFA and to advance unhindered in her career (see paragraph 26 above). 66. Consequently, the Government argued that the applicant had not been subjected to a difference in treatment in the exercise of her duties. Given the particular circumstances of her work at the embassy, where she had been the sole consular officer, the same decision would have been taken regardless of the reasons behind her long and unpredictable absences from work. 67. In addition, the decision to terminate the applicant’s posting had pursued a legitimate aim, notably ensuring the protection of the rights and freedoms of Romanian nationals abroad. 68. Lastly, the Government argued that the domestic courts had carefully examined the applicant’s claims and had balanced her rights and interests against those of the Romanian nationals in need of consular assistance in Slovenia, and the obligations of the MFA to ensure the functional stability of the embassy. The Court’s assessment (a) The general principles 69. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci, cited above, § 55). 70. It can be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12. 71. In this vein the Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see Molla Sali v. Greece [GC], no. 20452/14, §§ 133 and 135, 19 December 2018). 72. The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017). 73. Furthermore, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them. Indeed, 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 (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI; and Guberina v. Croatia, no. 23682/13, § 70, 22 March 2016). The prohibition deriving from Article 14 will therefore also give rise to positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different (see J.D. and A v. the United Kingdom, nos. 32949/17 and 34614/17, § 84, 24 October 2019, with further references, in particular Thlimmenos, cited above, § 44). In this context, relevance is measured in relation to what is at stake, whereas a certain threshold is required in order for the Court to find that the difference in circumstances is significant. For this threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in the light of the ground of discrimination invoked (see J.D. and A v. the United Kingdom, cited above, § 85). 74. The Court has acknowledged in its case-law, albeit indirectly, the need for the protection of pregnancy and motherhood (see, mutatis mutandis, Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11, § 82, 24 January 2017; Konstantin Markin v. Russia [GC], no. 30078/06, § 132, ECHR 2012; Alexandru Enache v. Romania, no. 16986/12, §§ 68 and 76-77, 3 October 2017; and Petrovic v. Austria, 27 March 1998, § 36, Reports of Judgments and Decisions 1998 ‑ II). 75. The Court has also held that the advancement of the equality of the sexes is a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference in treatment on the grounds of sex could be regarded as being compatible with the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, and Carvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 46, 25 July 2017). Consequently, where a difference in treatment is based on sex, the margin of appreciation afforded to the State is narrow, and in such situations the principle of proportionality does not merely require that the measure chosen should in general be suited to the fulfilment of the aim pursued, but it must also be shown that it was necessary in the circumstances (see Emel Boyraz v. Turkey, no. 61960/08, § 51, 2 December 2014). (b) Application of those principles to the facts of the present case 76. Turning to the facts of the present case, the Court notes that it was considered that the applicant would be unable to carry out her work because of absences for medical appointments and maternity leave (see paragraphs 20, 22 and 23 above). The decision to recall her to Bucharest was taken as soon as she had announced her second pregnancy (see paragraphs 19 and 24 above). In their submissions, the Government also accepted that the applicant’s condition had played a role in the decision to terminate her diplomatic assignment (see paragraph 65 above). Consequently, the Court considers it established that the applicant experienced such treatment mainly because of her pregnancy. 77. The Court observes that only women can be treated differently on grounds of pregnancy, and for this reason such a difference in treatment will amount to direct discrimination on grounds of sex if it is not justified. On this point, the Court cannot but note that a similar approach has also been taken by the CJEU in its case-law (see paragraphs 44 and 46 above), and that the approach is consistent with domestic law (see paragraph 31 above) and practice (see paragraphs 34 ‑ 36 above). 78. Having established that the applicant was treated differently on grounds of sex, the Court must determine whether the reasons put forward by the authorities – namely the MFA, the domestic courts and the Government – to justify the treatment applied to the applicant were relevant and sufficient, notwithstanding the narrow margin of appreciation afforded to States in cases such as the present one (see paragraph 75 above). 79. The Government argued that the decision to recall the applicant from her posting abroad had pursued the legitimate aim of the protection of the rights of others, notably Romanian nationals in need of consular assistance in Slovenia (see paragraphs 67-68 above). The Court accepts this assertion. It must then be established whether the measure was proportionate to this aim. 80. In this connection, it is to be noted that the domestic authorities and the Government considered that the early termination of the applicant’s posting abroad had been justified by the fact that her absence would have jeopardised the functional capacity of the embassy’s consular section (see paragraphs 22, 23, 28, 30 and 68 above). The Court observes that during the applicant’s absence from the office, consular services were suspended and requests for assistance were redirected to embassies in neighbouring countries (see paragraphs 11 and 15 above). It is thus clear that, bearing in mind the nature of her work and the urgency of the requests she was called upon to deal with (see paragraph 8 above), the applicant’s absence from the office seriously affected consular activity in the embassy. 81. The Court also notes that domestic law does not prevent as such the early termination of a diplomatic posting abroad (see paragraph 33 above), a fact also affirmed by the domestic courts (see paragraphs 28 and 30 above and, mutatis mutandis, paragraph 37 above). In addition, domestic law allows an employer to organise the activity of pregnant employees, the sole prohibition being that their contract of employment may not be terminated (see paragraph 30 above). 82. In this vein the Court notes that although her working conditions changed because of the early termination of her posting abroad, the applicant was not dismissed from her post as a diplomat in the MFA (see, in contrast, the case-law of the CJEU, quoted in paragraphs 43 to 48 above). That change in circumstances cannot be equated with a loss of employment (see also, for reference, the domestic case-law referred to in paragraph 35 above). 83. The Court therefore considers it established that the consequences for the applicant of the early termination of her posting abroad were not of the same nature as those expressly prohibited by the domestic equal opportunity laws (see paragraphs 31-32 above) and the State’s international commitments in the field of protection of pregnancy and maternity (see paragraphs 39-42 and 49 above). 84. Furthermore, despite her extended absence owing to maternity and parental leave, the applicant continued to be promoted by her employer, first in December 2007, while she was absent during her first pregnancy (see paragraph 13 above), and again in September 2016, about a year after her return to work (see paragraph 26 above). Consequently, it appears that she did not suffer any significant long-term setbacks in her diplomatic career. 85. Lastly, it is to be noted that the domestic courts expressly reiterated that the decision to terminate the applicant’s posting had not been a disciplinary measure (see paragraph 28 above). The Court has no reason to question that finding. It thus concludes that while the decision was motivated by the applicant’s pregnancy, it was not intended to put her in an unfavourable position. 86. In the light of the above findings, the Court considers it established that the early termination of the applicant’s diplomatic posting abroad was necessary for ensuring and maintaining the functional capacity of the diplomatic mission, and ultimately the protection of the rights of others. Notwithstanding the narrow margin of appreciation afforded to them, the domestic authorities provided relevant and sufficient reasons to justify the necessity of the measure. 87. There has accordingly been no breach of Article 1 of Protocol No. 12 to the Convention. | The Court held that there had been no violation of Article 1 (general prohibition of discrimination) of Protocol No. 12 to the Convention. It found that the applicant had been treated differently on grounds of sex, but that the domestic authorities had sufficiently justified such difference in treatment by the need to ensure the functioning of the embassy’s consular section, and ultimately to protect the rights of others, namely Romanians in need of assistance abroad. In any case, the applicant had not suffered any significant setbacks: she had neither been dismissed nor disciplined, and had in fact been promoted twice. |
788 | Providing medical information to the public | II. RELEVANT DOMESTIC LAW AND PRACTICE CONCERNING PROTECTION OF THE UNBORN A. Constitutional protection 28. Article 40.3.3 o of the Irish Constitution (the Eighth Amendment), which came into force in 1983 following a referendum, reads: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." This provision has been interpreted by the Supreme Court in the present case, in the Society for the Protection of Unborn Children ( Ireland ) Ltd v. Grogan and Others ([1989] Irish Reports, p. 753) and in The Attorney General v. X and Others (see paragraphs 22-25 above). B. Statutory protection 29. The statutory prohibition of abortion is contained in sections 58 and 59 of the Offences Against the Person Act 1861. Section 58 provides that: "Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to betaken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony, and being convicted thereof shall be liable, [to imprisonment for life] ..." Section 59 states that: "Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof, ..." 30. Section 16 of the Censorship of Publications Act 1929 as amended by section 12 of the Health (Family Planning) Act 1979 provides that: "It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing granted to him under this section (a) to print or publish or cause or procure to be printed or published, or (b) to sell or expose, offer or keep for sale or (c) to distribute, offer or keep for distribution, any book or periodical publication (whether appearing on the register of prohibited publications or not) which advocates or which might reasonably be supposed to advocate the procurement of abortion or miscarriage or any method, treatment or appliance to be used for the purpose of such procurement." 31. Section 58 of the Civil Liability Act 1961 provides that "the law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive". 32. Section 10 of the Health (Family Planning) Act 1979 re-affirms the statutory prohibition of abortion and states as follows: "Nothing in this Act shall be construed as authorising - (a) the procuring of abortion, (b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion) or, (c) the sale, importation into the State, manufacture, advertising or display of abortifacients ." C. Case-law 33. Apart from the present case and subsequent developments (see paragraphs 11-25 above), reference has been made to the right to life of the unborn in various decisions of the Supreme Court (see, for example, McGee v. Attorney General [1974] Irish Reports, p. 264, G. v. An Bord Uchtala [1980] Irish Reports, p. 32, Norris v. Attorney General [1984] Irish Reports, p. 36). 34. In the case of G. v. An Bord Uchtala (loc. cit.) Mr Justice Walsh stated as follows: "[A child] has the right to life itself and the right to be guarded against all threats directed to its existence, whether before or after birth ... The right to life necessarily implies the right to be born, the right to preserve and defend and to have preserved and defended that life ..." 35. The Supreme Court has also stated that the courts are the custodians of the fundamental rights set out in the Constitution and that their powers in this regard are as ample as the defence of the Constitution requires (The State (Quinn) v. Ryan [1965] Irish Reports 70). Moreover, an infringement of a constitutional right by an individual may be actionable in damages as a constitutional tort ( Meskell v. C.I.E. [1973] Irish Reports, p. 121). In his judgment in The People v. Shaw ([1982] Irish Reports, p. 1), Mr Justice Kenny observed: "When the People enacted the Constitution of 1937, they provided (Article 40,s.3) that the State guaranteed in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen and that the State should, in particular, by its laws protect as best it might from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. I draw attention to the use of the words ‘ the State ’. The obligation to implement this guarantee is imposed not on the Oireachtas only, but on each branch of the State which exercises the powers of legislating, executing and giving judgment on those laws: Article 6. The word ‘ laws ’ in Article 40,s.3 is not confined to laws which have been enacted by the Oireachtas, but comprehends the laws made by judges and by ministers of State when they make statutory instruments or regulations." PROCEEDINGS BEFORE THE COMMISSION 36. In their applications (nos. 14234 and 14235/88) lodged with the Commission on 19 August and 22 September 1988 the applicants complained that the injunction in question constituted an unjustified interference with their right to impart or receive information contrary to Article 10 (art. 10) of the Convention. Open Door, Mrs X and Ms Geraghty further claimed that the restrictions amounted to an interference with their right to respect for private life in breach of Article 8 (art. 8) and, in the case of Open Door, discrimination contrary to Article 14 in conjunction with Articles 8 and 10 (art. 14+8, art. 14+10). 37. The Commission joined the applications on 14 March 1989 and declared the case admissible on 15 May 1990. In its report of 7 March 1991 (Article 31) (art. 31), it expressed the opinion: (a) by eight votes to five, that there had been a violation of Article 10 (art. 10) in respect of the Supreme Court injunction as it affected the applicant companies and counsellors; (b) by seven votes to six, that there had been a violation of Article 10 (art. 10) in respect of the Supreme Court injunction as it affected Mrs X and Ms Geraghty; (c) by seven votes to two, with four abstentions, that it was not necessary to examine further the complaints of Mrs X and Ms Geraghty under Article 8 (art. 8); (d) unanimously, that there had been no violation of Articles 8 and 14 (art. 8, art. 14) in respect of Open Door. The full text of the Commission ’ s opinion and of the seven separate opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 38. At the public hearing on 24 March 1992 the Government maintained in substance the arguments and submissions set out in their memorial whereby they invited the Court to find that there had been no breach of the Convention. AS TO THE LAW I. SCOPE OF THE DUBLIN WELL WOMAN CASE 39. In their original application to the Commission Dublin Well Woman and the two counsellors, Ms Maher and Ms Downes, alleged that the Supreme Court injunction constituted an unjustified interference with their right to impart information, in breach of Article 10 (art. 10) of the Convention. In their pleadings before the Court they further complained that there had also been a breach of Article 8 (art. 8). They had not raised this complaint before the Commission. 40. The scope of the Court ’ s jurisdiction is determined by the Commission ’ s decision declaring the originating application admissible (see, inter alia, the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 27, para. 46). The Court considers that the applicants are now seeking to raise before the Court a new and separate complaint. As such it has no jurisdiction to entertain it. II. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS A. Whether Ms Maher, Ms Downes, Mrs X and Ms Geraghty can claim to be "victims" of a violation of the Convention 41. The Government submitted, as they had done before the Commission, that only the corporate applicants could claim to be "victims" of an infringement of their Convention rights. Ms Maher, Ms Downes, Mrs X and Ms Geraghty had not been involved in the proceedings before the Irish courts. Moreover the applicants had failed to identify a single pregnant woman who could claim to be a "victim" of the matters complained of. In this respect the case was in the nature of an actio popularis, particularly as regards Mrs X and Ms Geraghty. 1. Ms MahDoneer and Ms Downes 42. The Delegate of the Commission pointed out that the Government ’ s plea as regards the applicant counsellors (Ms Maher and Ms Downes ) conflicted with their concession in the pleadings before the Commission that these applicants were subject to the restraint of the Supreme Court injunction and could therefore properly claim to have suffered an interference with their Article 10 (art. 10) rights. 43. The Court agrees with the Commission that Ms Maher and Ms Downes can properly claim to be "victims" of an interference with their rights since they were directly affected by the Supreme Court injunction. Moreover, it considers that the Government are precluded from making submissions as regards preliminary exceptions which are inconsistent with concessions previously made in their pleadings before the Commission (see, mutatis mutandis, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, pp. 21-22, para. 47, and the Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C, p. 54, para. 32). 2. Mrs X and Ms Geraghty 44. The Court recalls that Article 25 (art. 25) entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 21, para. 42). In the present case the Supreme Court injunction restrained the corporate applicants and their servants and agents from providing certain information to pregnant women. Although it has not been asserted that Mrs X and Ms Geraghty are pregnant, it is not disputed that they belong to a class of women of child-bearing age which may be adversely affected by the restrictions imposed by the injunction. They are not seeking to challenge in abstracto the compatibility of Irish law with the Convention since they run a risk of being directly prejudiced by the measure complained of. They can thus claim to be "victims" within the meaning of Article 25 para. 1 (art. 25-1). B. Whether the application complies with the six-month rule 45. At the oral hearing the Government submitted that the application should be rejected under Article 26 (art. 26) for failure to comply with the six-month rule, on the grounds that the applicants were relying on case-law and arguments which were not raised before the domestic courts. 46. The Court observes that while this plea was made before the Commission (see Appendix II of the Commission ’ s report) it was not re-iterated in the Government ’ s memorial to the Court and was raised solely at the oral hearing. Rule 48 para. 1 of the Rules of Court, however, required them to file it before the expiry of the time-limit laid down for the filing of their memorial, with the result that it must therefore be rejected as being out of time (see, inter alia, the Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 28, para. 56). C. Whether the applicants had exhausted domestic remedies 47. In their memorial the Government submitted - as they had also done before the Commission - that domestic remedies had not been exhausted, as required by Article 26 (art. 26), by: 1. Open Door as regards its complaints under Articles 8 and 14 (art. 8, art. 14); 2. both Open Door and Dublin Well Woman in so far as they sought to introduce in their complaint under Article 10 (art. 10) evidence and submissions concerning abortion and the impact of the Supreme Court injunction on women ’ s health that had not been raised before the Irish courts; 3. Ms Maher, Ms Downes, Mrs X and Ms Geraghty on the grounds that they had made no attempt to exhaust domestic remedies under Irish law and that they had not been involved in any capacity in the relevant proceedings before the Irish courts. 48. As regards (1) the Court observes that Open Door would have had no prospect of success in asserting these complaints having regard to the reasoning of the Supreme Court concerning the high level of protection afforded to the right to life of the unborn child under Irish law (see paragraphs 16-25 above). 49. As regards (2) Open Door and Dublin Well Woman are not introducing a fresh complaint in respect of which they have not exhausted domestic remedies. They are merely developing their submissions in respect of complaints which have already been examined by the Irish courts. Article 26 (art. 26) imposes no impediments to applicants in this regard. It is clear from the judgment of the Supreme Court that the applicants had in fact argued that an injunction would adversely affect women ’ s health and that this submission was rejected (see paragraph 18 above). 50. Finally, as regards (3) it emerges from the judgments of the Supreme Court in the present case and in subsequent cases (see paragraphs 16-25 above) that any action brought by the four individual applicants would have had no prospects of success. 51. Accordingly, the Government ’ s objection based on non- exhaustion of domestic remedies fails. Conclusion 52. To sum up, the Court is able to take cognisance of the merits of the case as regards all of the applicants. III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) 53. The applicants alleged that the Supreme Court injunction, restraining them from assisting pregnant women to travel abroad to obtain abortions, infringed the rights of the corporate applicants and the two counsellors to impart information, as well as the rights of Mrs X and Ms Geraghty to receive information. They confined their complaint to that part of the injunction which concerned the provision of information to pregnant women as opposed to the making of travel arrangements or referral to clinics (see paragraph 20 above). They invoked Article 10 (art. 10) which provides: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, 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." 54. In their submissions to the Court the Government contested these claims and also contended that Article 10 (art. 10) should be interpreted against the background of Articles 2, 17 and 60 (art. 2, art. 17, art. 60) of the Convention the relevant parts of which state: Article 2 (art. 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 17 (art. 17) "Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention." Article 60 (art. 60) "Nothing in [the] Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party." A. Was there an interference with the applicants ’ rights? 55. The Court notes that the Government accepted that the injunction interfered with the freedom of the corporate applicants to impart information. Having regard to the scope of the injunction which also restrains the "servants or agents" of the corporate applicants from assisting "pregnant women" (see paragraph 20 above), there can be no doubt that there was also an interference with the rights of the applicant counsellors to impart information and with the rights of Mrs X and Ms Geraghty to receive information in the event of being pregnant. To determine whether such an interference entails a violation of Article 10 (art. 10), the Court must examine whether or not it was justified under Article 10 para. 2 (art. 10-2) by reason of being a restriction "prescribed by law" which was necessary in a democratic society on one or other of the grounds specified in Article 10 para. 2 (art. 10-2). B. Was the restriction "prescribed by law"? 1. Arguments presented by those appearing before the Court 56. Open Door and Dublin Well Woman submitted that the law was not formulated with sufficient precision to have enabled them to foresee that the non-directive counselling in which they were involved would be restrained by the courts. It was not clear from the wording of Article 40.3.3 o of the Constitution (the Eighth Amendment), which gave rise to many difficulties of interpretation and application, that those giving information to pregnant women would be in breach of this provision. In the same way, it was not clear whether it could have been used as a means of prohibiting access to foreign periodicals containing advertisements for abortion facilities abroad or of restricting other activities involving a "threat" to the life of the unborn such as travelling abroad to have an abortion. In this respect the applicants pointed out that the provision had been criticised at the time of its enactment by both the Attorney General and the Director of Public Prosecutions on the grounds that it was ambiguous and uncertain. Furthermore, although there was an expectation that there would be legislation to clarify the meaning of the provision, none was in fact enacted. They also maintained that on its face Article 40.3.3 o is addressed only to the State and not to private persons. Thus they had no way of knowing that it would apply to non-directive counselling by private agencies. Indeed, since none of Ireland ’ s other laws concerning abortion forbids such counselling or travelling abroad to have an abortion they had good reason to believe that this activity was lawful. Finally, the insufficient precision of the Eighth Amendment was well reflected in the recent judgment of the Supreme Court of 5 March 1992 in The Attorney General v. X and Others which, as conceded by the Government, had the consequence that it would now be lawful to provide information concerning abortion services abroad in certain circumstances (see paragraph 25 above). In sum, given the uncertain scope of this provision and the considerable doubt as to its meaning and effect, even amongst the most authoritative opinion, the applicants could not have foreseen that such non-directive counselling was unlawful. 57. The Government submitted that the legal position was reasonably foreseeable with appropriate legal advice, within the meaning of the Court ’ s case-law. The applicants ought to have known that an injunction could be obtained against them to protect or defend rights guaranteed by the Constitution, or recognised at common law, or under the principles of the law of equity. Indeed, evidence had now come to light subsequent to the publication of the Commission ’ s report that Dublin Well Woman had actually received legal advice concerning the implications of the wording of the Amendment which warned that a court injunction to restrain their counselling activities was possible (see paragraph 10 in fine above). It was thus not open to the applicants, against this background, to argue that the injunction was unforeseeable. 58. For the Commission, the Eighth Amendment did not provide a clear basis for the applicants to have foreseen that providing information about lawful services abroad would be unlawful. A law restricting freedom of expression across frontiers in such a vital area required particular precision to enable individuals to regulate their conduct accordingly. Since it was not against the criminal law for women to travel abroad to have an abortion, lawyers could reasonably have concluded that the provision of information did not involve a criminal offence. In addition, the Government had been unable to show, with reference to case-law, that the applicant companies could have foreseen that their counselling service was a constitutional tort (see paragraph 35 above). Moreover, the wording of the Amendment suggested that legislation was to have been enacted regulating the protection of the rights of the unborn. 2. Court ’ s examination of the issue 59. This question must be approached by considering not merely the wording of Article 40.3.3 o in isolation but also the protection given under Irish law to the rights of the unborn in statute law and in case-law (see paragraphs 28-35 above). It is true that it is not a criminal offence to have an abortion outside Ireland and that the practice of non-directive counselling of pregnant women did not infringe the criminal law as such. Moreover, on its face the language of Article 40.3.3 o appears to enjoin only the State to protect the right to life of the unborn and suggests that regulatory legislation will be introduced at some future stage. On the other hand, it is clear from Irish case-law, even prior to 1983, that infringement of constitutional rights by private individuals as well as by the State may be actionable (see paragraph 35 above). Furthermore, the constitutional obligation that the State defend and vindicate personal rights "by its laws" has been interpreted by the courts as not being confined merely to "laws" which have been enacted by the Irish Parliament ( Oireachtas ) but as also comprehending judge-made "law". In this regard the Irish courts, as the custodians of fundamental rights, have emphasised that they are endowed with the necessary powers to ensure their protection (ibid.). 60. Taking into consideration the high threshold of protection of the unborn provided under Irish law generally and the manner in which the courts have interpreted their role as the guarantors of constitutional rights, the possibility that action might be taken against the corporate applicants must have been, with appropriate legal advice, reasonably foreseeable (See the Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 31, para. 49). This conclusion is reinforced by the legal advice that was actually given to Dublin Well Woman that, in the light of Article 40.3.3 o, an injunction could be sought against its counselling activities (see paragraph 10 in fine above). The restriction was accordingly "prescribed by law". C. Did the restriction have aims that were legitimate under Article 10 para. 2 (art. 10-2)? 61. The Government submitted that the relevant provisions of Irish law are intended for the protection of the rights of others - in this instance the unborn -, for the protection of morals and, where appropriate, for the prevention of crime. 62. The applicants disagreed, contending inter alia that, in view of the use of the term "everyone" in Article 10 para. 1 (art. 10-1) and throughout the Convention, it would be illogical to interpret the "rights of others" in Article 10 para. 2 (art. 10-2) as encompassing the unborn. 63. The Court cannot accept that the restrictions at issue pursued the aim of the prevention of crime since, as noted above (paragraph 59), neither the provision of the information in question nor the obtaining of an abortion outside the jurisdiction involved any criminal offence. However, it is evident that the protection afforded under Irish law to the right to life of the unborn is based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion as expressed in the 1983 referendum (see paragraph 28 above). The restriction thus pursued the legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn is one aspect. It is not necessary in the light of this conclusion to decide whether the term "others" under Article 10 para. 2 (art. 10-2) extends to the unborn. D. Was the restriction necessary in a democratic society? 64. The Government submitted that the Court ’ s approach to the assessment of the "necessity" of the restraint should be guided by the fact that the protection of the rights of the unborn in Ireland could be derived from Articles 2, 17 and 60 (art. 2, art. 17, art. 60) of the Convention. They further contended that the "proportionality" test was inadequate where the rights of the unborn were at issue. The Court will examine these issues in turn. 1. Article 2 (art. 2) 65. The Government maintained that the injunction was necessary in a democratic society for the protection of the right to life of the unborn and that Article 10 (art. 10) should be interpreted inter alia against the background of Article 2 (art. 2) of the Convention which, they argued, also protected unborn life. The view that abortion was morally wrong was the deeply held view of the majority of the people in Ireland and it was not the proper function of the Court to seek to impose a different viewpoint. 66. The Court observes at the outset that in the present case it is not called upon to examine whether a right to abortion is guaranteed under the Convention or whether the foetus is encompassed by the right to life as contained in Article 2 (art. 2). The applicants have not claimed that the Convention contains a right to abortion, as such, their complaint being limited to that part of the injunction which restricts their freedom to impart and receive information concerning abortion abroad (see paragraph 20 above). Thus the only issue to be addressed is whether the restrictions on the freedom to impart and receive information contained in the relevant part of the injunction are necessary in a democratic society for the legitimate aim of the protection of morals as explained above (see paragraph 63). It follows from this approach that the Government ’ s argument based on Article 2 (art. 2) of the Convention does not fall to be examined in the present case. On the other hand, the arguments based on Articles 17 and 60 (art. 17, art. 60) fall to be considered below (see paragraphs 78 and 79). 2. Proportionality 67. The Government stressed the limited nature of the Supreme Court ’ s injunction which only restrained the provision of certain information (see paragraph 20 above). There was no limitation on discussion in Ireland about abortion generally or the right of women to travel abroad to obtain one. They further contended that the Convention test as regards the proportionality of the restriction was inadequate where a question concerning the extinction of life was at stake. The right to life could not, like other rights, be measured according to a graduated scale. It was either respected or it was not. Accordingly, the traditional approach of weighing competing rights and interests in the balance was inappropriate where the destruction of unborn life was concerned. Since life was a primary value which was antecedent to and a prerequisite for the enjoyment of every other right, its protection might involve the infringement of other rights such as freedom of expression in a manner which might not be acceptable in the defence of rights of a lesser nature. The Government also emphasised that, in granting the injunction, the Supreme Court was merely sustaining the logic of Article 40.3.3 o of the Constitution. The determination by the Irish courts that the provision of information by the relevant applicants assisted in the destruction of unborn life was not open to review by the Convention institutions. 68. The Court cannot agree that the State ’ s discretion in the field of the protection of morals is unfettered and unreviewable (see, mutatis mutandis, for a similar argument, the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 20, para. 45). It acknowledges that the national authorities enjoy a wide margin of appreciation in matters of morals, particularly in an area such as the present which touches on matters of belief concerning the nature of human life. As the Court has observed before, it is not possible to find in the legal and social orders of the Contracting States a uniform European conception of morals, and the State authorities are, in principle, in a better position than the international judge to give an opinion on the exact content of the requirements of morals as well as on the "necessity" of a "restriction" or "penalty" intended to meet them (see, inter alia, the Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, p. 22, para. 48, and the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 22, para. 35). However this power of appreciation is not unlimited. It is for the Court, in this field also, to supervise whether a restriction is compatible with the Convention. 69. As regards the application of the "proportionality" test, the logical consequence of the Government ’ s argument is that measures taken by the national authorities to protect the right to life of the unborn or to uphold the constitutional guarantee on the subject would be automatically justified under the Convention where infringement of a right of a lesser stature was alleged. It is, in principle, open to the national authorities to take such action as they consider necessary to respect the rule of law or to give effect to constitutional rights. However, they must do so in a manner which is compatible with their obligations under the Convention and subject to review by the Convention institutions. To accept the Government ’ s pleading on this point would amount to an abdication of the Court ’ s responsibility under Article 19 (art. 19) "to ensure the observance of the engagements undertaken by the High Contracting Parties ...". 70. Accordingly, the Court must examine the question of "necessity" in the light of the principles developed in its case-law (see, inter alia, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, pp. 29-30, para. 59). It must determine whether there existed a pressing social need for the measures in question and, in particular, whether the restriction complained of was "proportionate to the legitimate aim pursued" (ibid.). 71. In this context, it is appropriate to recall that freedom of expression is also applicable to "information" or "ideas" that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (see, inter alia, the above-mentioned Handyside judgment, Series A no. 24, p. 23, para. 49). 72. While the relevant restriction, as observed by the Government, is limited to the provision of information, it is recalled that it is not a criminal offence under Irish law for a pregnant woman to travel abroad in order to have an abortion. Furthermore, the injunction limited the freedom to receive and impart information with respect to services which are lawful in other Convention countries and may be crucial to a woman ’ s health and well-being. Limitations on information concerning activities which, notwithstanding their moral implications, have been and continue to be tolerated by national authorities, call for careful scrutiny by the Convention institutions as to their conformity with the tenets of a democratic society. 73. The Court is first struck by the absolute nature of the Supreme Court injunction which imposed a "perpetual" restraint on the provision of information to pregnant women concerning abortion facilities abroad, regardless of age or state of health or their reasons for seeking counselling on the termination of pregnancy. The sweeping nature of this restriction has since been highlighted by the case of The Attorney General v. X and Others and by the concession made by the Government at the oral hearing that the injunction no longer applied to women who, in the circumstances as defined in the Supreme Court ’ s judgment in that case, were now free to have an abortion in Ireland or abroad (see paragraph 25 above). 74. On that ground alone the restriction appears over broad and disproportionate. Moreover, this assessment is confirmed by other factors. 75. In the first place, it is to be noted that the corporate applicants were engaged in the counselling of pregnant women in the course of which counsellors neither advocated nor encouraged abortion, but confined themselves to an explanation of the available options (see paragraphs 13 and 14 above). The decision as to whether or not to act on the information so provided was that of the woman concerned. There can be little doubt that following such counselling there were women who decided against a termination of pregnancy. Accordingly, the link between the provision of information and the destruction of unborn life is not as definite as contended. Such counselling had in fact been tolerated by the State authorities even after the passing of the Eighth Amendment in 1983 until the Supreme Court ’ s judgment in the present case. Furthermore, the information that was provided by the relevant applicants concerning abortion facilities abroad was not made available to the public at large. 76. It has not been seriously contested by the Government that information concerning abortion facilities abroad can be obtained from other sources in Ireland such as magazines and telephone directories (see paragraphs 23 and 27 above) or by persons with contacts in Great Britain. Accordingly, information that the injunction sought to restrict was already available elsewhere although in a manner which was not supervised by qualified personnel and thus less protective of women ’ s health. Furthermore, the injunction appears to have been largely ineffective in protecting the right to life of the unborn since it did not prevent large numbers of Irish women from continuing to obtain abortions in Great Britain (see paragraph 26 above). 77. In addition, the available evidence, which has not been disputed by the Government, suggests that the injunction has created a risk to the health of those women who are now seeking abortions at a later stage in their pregnancy, due to lack of proper counselling, and who are not availing themselves of customary medical supervision after the abortion has taken place (see paragraph 26 above). Moreover, the injunction may have had more adverse effects on women who were not sufficiently resourceful or had not the necessary level of education to have access to alternative sources of information (see paragraph 76 above). These are certainly legitimate factors to take into consideration in assessing the proportionality of the restriction. 3. Articles 17 and 60 (art. 17, art. 60) 78. The Government, invoking Articles 17 and 60 (art. 17, art. 60) of the Convention, have submitted that Article 10 (art. 10) should not be interpreted in such a manner as to limit, destroy or derogate from the right to life of the unborn which enjoys special protection under Irish law. 79. Without calling into question under the Convention the regime of protection of unborn life that exists under Irish law, the Court recalls that the injunction did not prevent Irish women from having abortions abroad and that the information it sought to restrain was available from other sources (see paragraph 76 above). Accordingly, it is not the interpretation of Article 10 (art. 10) but the position in Ireland as regards the implementation of the law that makes possible the continuance of the current level of abortions obtained by Irish women abroad. 4. Conclusion 80. In the light of the above, the Court concludes that the restraint imposed on the applicants from receiving or imparting information was disproportionate to the aims pursued. Accordingly there has been a breach of Article 10 (art. 10). IV. ALLEGED VIOLATIONS OF ARTICLES 8 AND 14 (art. 8, art. 14) 81. Open Door also alleged a violation of the right to respect for private life contrary to Article 8 (art. 8) claiming that it should be open to it to complain of an interference with the privacy rights of its clients. Similarly, Mrs X and Ms Geraghty complained under this provision that the denial to them of access to information concerning abortion abroad constituted an unjustifiable interference with their right to respect for private life. Open Door further claimed discrimination contrary to Article 14 in conjunction with Article 8 (art. 14+8) alleging that the injunction discriminated against women since men were not denied information "critical to their reproductive and health choices". It also invoked Article 14 in conjunction with Article 10 (art. 14+10) claiming discrimination on the grounds of political or other opinion since those who seek to counsel against abortion are permitted to express their views without restriction. 82. The applicants in the Dublin Well Woman case, in their memorial to the Court, similarly complained of discrimination contrary to Article 14, firstly, in conjunction with Article 8 (art. 14+8) on the same basis as Open Door, and secondly, in conjunction with Article 10 (art. 14+10) on the grounds that it followed from the decision of the Court of Justice of the European Communities in the Grogan case (see paragraph 24 above) that, had Dublin Well Woman been an "economic operator", they would have been permitted to distribute and receive such information. 83. The Court notes that the complaints of discrimination made by the applicants in Dublin Well Woman were made for the first time in the proceedings before the Court and that consequently it may be questioned whether it has jurisdiction to examine them (see paragraph 40 above). However, having regard to its finding that there had been a breach of Article 10 (art. 10) (see paragraph 80 above) the Court considers that it is not necessary to examine either these complaints or those made by Open Door, Mrs X and Ms Geraghty. V. APPLICATION OF ARTICLE 50 (art. 50) 84. Article 50 (art. 50) provides as follows: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 85. Open Door made no claim for compensation for damage. Dublin Well Woman, on the other hand, claimed pecuniary damages amounting to IR£62,172 in respect of loss of income for the period January 1987 to June 1988 due to the discontinuance of the pregnancy counselling service. 86. The Government submitted that the claim should be rejected. In particular, they contended that it was made belatedly; that it was inconsistent with Dublin Well Woman ’ s status as a non-profit- making company to claim pecuniary damage and was excessive. 87. The Court notes that the claim was made on 24 February 1992 and thus well in advance of the hearing of the case on 24 March 1992. Furthermore, it considers that even a non-profit- making company such as the applicant can incur losses for which it should be compensated. The Government have submitted that it was unclear on what basis or in what manner the sum of IR£62,172 was computed and Dublin Well Woman has not indicated how these losses were calculated or sought to substantiate them. Nevertheless, the discontinuance of the counselling service must have resulted in a loss of income. Having regard to equitable considerations as required by Article 50 (art. 50), the Court awards IR£25,000 under this head. B. Costs and expenses 1. Open Door 88. Open Door claimed the sum of IR£68,985.75 referable to both the national proceedings and to those before the Convention institutions. This sum did not take into account what had been received by way of legal aid from the Council of Europe in respect of fees. On 1 May 1992 Mr Cole, a lawyer who had appeared on behalf of Open Door, filed a supplementary claim for US$24,300 on behalf of the Centre for Constitutional Rights. 89. The Government considered the claim made by Open Door to be reasonable. 90. The Court observes that the claim made by Open Door includes an amount for the services of Mr Cole of the Centre for Constitutional Rights. It rejects his supplementary claim on behalf of the Centre for Constitutional Rights which was not itself a party to the proceedings. However, it allows Open Door ’ s uncontested claim less 6,900 French francs paid by way of legal aid in respect of fees. 2. Dublin Well Woman 91. Dublin Well Woman claimed a total sum of IR£63,302.84 for costs and expenses incurred in the national proceedings. They further claimed IR£21,084.95 and IR£27,116.30 in respect of proceedings before the Commission and the Court. These sums did not take into account what had been received by way of legal aid in respect of fees and expenses. 92. The Government accepted that the claims for domestic costs were reasonable. However they submitted that, in the light of the claim made by Open Door, IR£16,000 and IR£19,000 were more appropriate sums for the proceedings before the Commission and Court. 93. The Court also considers that the amount claimed in respect of the proceedings before the Commission and Court is excessive taking into account the fees claimed by Open Door and the differences between the two applications. It holds that Dublin Well Woman should be awarded IR£100,000 under this head less 52,577 French francs already paid by way of legal aid in respect of fees and expenses. 94. The amounts awarded in this judgment are to be increased by any value-added tax that may be chargeable. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found that the restriction imposed on the applicant companies had created a risk to the health of women who did not have the resources or education to seek and use alternative means of obtaining information about abortion. In addition, given that such information was available elsewhere, and that women in Ireland could, in principle, travel to Great Britain to have abortions, the restriction had been largely ineffective. |
354 | Violence by private individuals | II. RELEVANT DOMESTIC LAW A. Constitution of Ukraine 54. The relevant provisions of the Constitution of Ukraine (1996) read as follows: Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity ... ” Article 30 “Everyone is guaranteed the inviolability of his or her dwelling place. Entry into a dwelling place or other possessions of a person, and the examination or search thereof, shall not be permitted, other than pursuant to a substantiated court decision ... ” Article 32 “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine.” Article 41 “Everyone has the right to own, use and dispose of his or her property ... The right of private property is acquired by the procedure determined by law ... The use of property shall not cause harm to the rights, freedoms and dignity of citizens, the interests of society, aggravate the ecological situation and the natural qualities of land.” B. Civil Code of Ukraine of 1963 (repealed with effect from 1 January 2004) 55. Relevant provisions of the Civil Code of Ukraine in force at the time when the applicant brought the first set of civil proceedings read as follows: Article 113. Right of Divided Co-Ownership “Possession, use and disposal of property held in divided co-ownership shall be carried out with the consent of all the co-owners, and, in the absence of consensus, the dispute shall be decided by court. ... Every co-owner ... according to the size of his or her share [in the right of joint ownership] shall be entitled to proceeds from joint property, shall be liable before third parties for obligations regarding the joint property and shall pay their part of various taxes and dues, as well as in maintenance and upkeep expenses concerning the joint property. Every co-owner of a joint divided property shall have the right to transfer his share [in the right of] the joint ownership to a third person for or without remuneration.” Article 114. Right of first refusal in buying a share in the right of divided co-ownership “When a share in the right of joint [divided] ownership is proposed for sale to a third party, the remaining co-owners shall have the right of first refusal of the share at the asking price ... The seller of the share is obliged to inform the remaining co-owners in writing of his or her intent to sell his or her share to a third party, indicating the price and other terms of the sale ... When the sale of a share is effected in breach of the right of first refusal, another co-owner ... may apply to court demanding transfer of the rights and obligations of the buyer to him or her.” C. Civil Code of Ukraine of 2003 56. Relevant provisions of the new Civil Code of Ukraine of 2003 read as follows: Article 358. Exercise of the right of divided co-ownership “1. The right of divided co-ownership shall be exercised by the co-owners on a consensual basis. 2. The co-owners may enter into an agreement regarding the rules on possession and the use of their property held in divided co- ownership. 3. Every co-owner shall have the right to be provided with a share of the co-owned object corresponding to his or her share in a divided co-ownership. Where this is impossible, he or she may demand relevant pecuniary compensation from other co-owners who possess and use the co-owned object.” Article 362. Right of first refusal in buying a share in the right of divided co-ownership “1. Where a share of divided co-ownership is to be sold, a co-owner shall have the right of first refusal at the asking price for the sale, and on other equal conditions, except where the sale is effected via a public auction ... ” Article 365. Termination of title to a share in joint ownership on the demand of other co-owners “1. Title to a share in joint ownership may be terminated upon a court decision on the basis of a legal action by other co-owners in the event that: 1) the share is insignificant and cannot be allocated as a divisible part of the whole; 2) the property is indivisible; 3) joint possession and use of the property is impossible; 4) such termination will not cause significant harm to the interests of the co-owner and members of his family. 2. The court shall decide on the termination of a person ’ s title to a share in joint ownership on condition of advance deposit by the plaintiff of the value of this share with the court ’ s deposit account.” Article 386. Basic provisions concerning protecting the right of ownership “1. A State shall ensure equal protection of all subjects of the right of ownership. 2. An owner who reasonably foresees a possibility of a breach of his or her right by another person, may apply to court to obtain an injunction against actions, which may breach his or her right, or to obtain execution of certain actions for the prevention of such a breach. An owner whose rights have been breached, shall be entitled to reimbursement of the pecuniary and moral damage sustained by him or her.” Article 391. Protection of the right of ownership from breaches other than deprivation of possession “1. The owner of property shall have the right to demand cessation of interference with exercising his or her rights of use and disposal of his or her own property.” D. Criminal Code of Ukraine 57. The relevant provisions of the Criminal Code of Ukraine (2003) as worded in the material time read as follows: Article 125. Intentional minor physical injury “1. An intentional minor physical injury shall be punished by a fine ...; 2. An intentional minor physical injury resulting in a short-term health disorder or insignificant loss of capability to work shall be punished by public works ...” Article 126. Battery and torment “1. Intentional striking; beating or commitment of other violent acts, which caused physical pain and did not result in physical injuries shall be punished by a fine ... 2. The same acts, which constitute torments by their nature, committed by a group of people or with a purpose to terrorise the injured party or his or her close friends or relatives shall be punished by restriction of liberty ... ” Article 189. Extortion “1. A demand to transfer the property of another ... by threatening to commit a violent act in respect of the victim or his or her relatives, restrict rights, freedoms ... of these persons, damage or destroy their property, ... shall be punished by restriction of liberty ...; 4. Extortion resulting in particularly grave pecuniary damage or committed by an organised group or accompanied by infliction of grave physical injury ... shall be punished by imprisonment from seven to twelve years and confiscation of property.” III. RELEVANT COUNCIL OF EUROPE DOCUMENTS 58. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women and prevention. 59. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, and ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge. THE LAW I. SCOPE OF THE CASE 60. The Court notes that the applicant raised several new complaints in her reply to the Government ’ s observations of 10 April 2012 on the admissibility and merits of this case. In particular, she additionally complained, under Article 6 of the Convention, that the length of proceedings in her case had been unreasonable, and referred to Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the facts of the present case. 61. In the Court ’ s view, the applicant ’ s new complaints are not an elaboration of her original complaints to the Court on which the parties had commented before they were raised. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see, in particular, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005). II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 62. The applicant complained that for an extended period of time the State authorities had failed to protect her from systematic inhuman and degrading treatment, that is, violence and verbal harassment by the co ‑ owners of her flat, and their guests and tenants. She relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 63. The Government alleged that the available domestic remedies in respect of the above complaint had not been exhausted when their observations had been lodged (23 December 2013). First of all, at that time the criminal proceedings against the co-owners of the applicant ’ s flat, instituted in 2007, had been still pending at the material time; thus it had been premature to prejudge their outcome. Secondly, had the applicant been unsatisfied with the manner in which the law-enforcement authorities had conducted these proceedings or generally responded to her complaints, it had been open for her to lodge a complaint against them seeking damages for delayed and ineffective investigation. Finally, it had always been open to the applicant to institute private criminal prosecution proceedings to seek punishment of the alleged offenders for the episodes of violent behaviour, in particular, under Articles 125 and 126 of the Criminal Code. She had not done so until July 2006, and even then she had failed to pursue her claim. 64. The applicant disagreed. She submitted, in particular, that the public criminal proceedings against the alleged offenders had been instituted with undue delay and had been unreasonably protracted and thus ineffective. As regards the other remedies mentioned by the Government, they were prima facie ineffective in her case. In particular, a private criminal action was incapable of redressing the situation of continuous and systematic harassment. At best, it could result in insignificant penalties for isolated incidents of physical violence. In any event, the applicant had tried this remedy in 2006, and her complaint had been rejected on formal procedural grounds more than a year after it had been accepted for examination. By that time the public criminal proceedings against the principal offenders had been instituted. In the applicant ’ s view, these proceedings could reasonably have led to incorporation and proper qualification of the entirety of her complaints. In this situation it had become pointless for the applicant to pursue a separate private action. Lastly, as regards the civil claim against the law-enforcement authorities, the Government had not shown how this remedy would have operated in practice and how it would have been capable of speeding up the resolution of the applicant ’ s systematic problem. 65. The Court notes that, as regards the first objection raised by the Government, on 18 September 2014 the final decision was taken in the criminal proceedings against A.N., V.S. and A.L. Accordingly, it considers that the Government ’ s objection that the applicant ’ s complaint had been premature is no longer valid ( see Kirpichenko v. Ukraine, no. 38833/03, § 63, 2 April 2015). 66. As regards the other objections, they are closely linked to the substance of the applicant ’ s complaint under Article 3 of the Convention and must therefore be joined to the merits. 67. The Court notes that otherwise 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 68. The applicant submitted that for a number of years starting from November 2001 she had lived in a continuous situation of harassment from the co-owners of her flat, and their guests and tenants. In the meantime, for a very long period of time, the authorities had been “dissecting” this continuous situation into isolated trivial conflicts and had refused to see the underlying structural problem. While eventually the criminal proceedings had been initiated and the applicant ’ s submissions had been adequately incorporated in the body of the evidence against the principal offenders, the delay in instituting these proceedings and their subsequent length had rendered them ineffective. 69. The Government acknowledged that the applicant, a retired single woman, was a vulnerable person, and that the State had a positive duty to protect her from ill-treatment by her flat co-owners and their guests and tenants. Further, they argued that this duty had been duly discharged in the applicant ’ s case. In particular, the initial reluctance of the police to institute criminal proceedings against the purported offenders was understandable and justified: it had not been easy to distinguish the applicant ’ s case from a trivial domestic dispute. The co-owners of the applicant ’ s flat and their guests and tenants had a legal right to be in that flat. Both sides had accused each other of provoking the conflicts and creating intolerable living conditions. As the time lapsed, it had become obvious that the situation had been more complicated. Accordingly, criminal proceedings had been instituted and the applicant ’ s offenders had been sentenced to significant prison terms. It had also always been open to the applicant under the law to appeal in court against the decisions not to institute criminal proceedings against the offenders as well as to prosecute them in private criminal actions for the particular incidents of ill-treatment. The fact that she had not pursued these avenues cannot be held against the State. 70. 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 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. This requirement extends to ill-treatment administered by private individuals (see, among other authorities, D.F. v. Latvia, no. 11160/07, § 83, 29 October 2013 and Valiulienė v. Lithuania, no. 33234/07, § 75, 26 March 2013 ). For this positive obligation to arise, it must be established that the ill-treatment complained of reached the threshold of severity proscribed under Article 3 ( see B.V. and Others v. Croatia (dec.), no. 38435/13, §§ 152-53, 15 December 2015) or that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of such ill-treatment ( see Đorđević v. Croatia, no. 41526/10, § 139, ECHR 2012 ). 71. The State authorities may not be expected to set in motion the criminal-law machinery in every case where neighbours, household members or other individuals engage in trivial disputes and seek to settle an ongoing personal conflict by involving the criminal justice authorities ( see B.V. and Others, cited above, §§ 153, 155-58). On the other hand, it is important that measures of effective protection against domestic violence and other types of harassment are put in place for vulnerable persons, including reasonable steps to prevent likely ill-treatment ( see Đurđević v. Croatia, no. 52442/09, § 102, ECHR 2011 (extracts)). Where an individual makes a credible assertion of having been subjected to repeated acts of domestic violence or other types of harassment, however trivial the isolated incidents might be, it falls on the domestic authorities to assess the situation in its entirety, including the risk that similar incidents would continue. This assessment should, above all, take due account of the psychological effect that the risk of repeated harassment, intimidation and violence may have on the victim ’ s everyday life ( see Valiulienė, cited above, §§ 68-69; Đorđević, cited above, §§ 90-93; and M. and M. v. Croatia, no. 10161/13, §§ 141-42, ECHR 2015 (extracts)). Where it is established that a particular individual has been systematically targeted and future abuse is likely to follow, apart from responses to specific incidents, the authorities may be called upon to implement an appropriate action of a general nature to combat the underlying problem ( see Đorđević, cited above, §§ 147-49). 72. Turning to the facts of the present case, the Court notes the repeated and premeditated nature of the verbal and physical assaults, to which a group of younger and stronger men was subjecting the applicant, a retired single woman, for several years. While some episodes complained of, taken in isolation, could qualify as trivial domestic disputes between lawful flat occupants, other instances of violence, resulting in injuries ( see paragraphs 10, 13 and 18 above), were very serious in and of themselves. As the incidents regularly repeated over a period of time, they must be viewed as a continuing situation, which is an aggravating circumstance ( see Valiulienė, cited above, § 68). It also follows from the case file that repeated physical and verbal attacks caused the applicant profound mental suffering, distress and constant fear for her life and limb. This suffering was aggravated in view that violence and harassment occurred in the privacy of the applicant ’ s home, which prevented any outside help. 73. Regard being had to the repeated and premeditated nature of verbal attacks coupled with incidents of physical violence by a group of men against a single senior woman, the Court considers that the treatment, to which the applicant was subjected, reached the threshold of severity falling within the ambit of Article 3 of the Convention. It further finds that this treatment engaged the State ’ s positive duty under Article 3 of the Convention to put in motion the protective legislative and administrative framework. 74. It follows from the case file that eventually the applicant ’ s principal miscreants were publicly prosecuted and sentenced to significant prison terms. In addition to that, the judicial authorities ordered confiscation of their property. It is notable that the charges against the applicant ’ s aggressors were qualified in law as extortion rather than harassment or a similar offence. However, it appears from the domestic judgments that violent conduct vis-à-vis the applicant was taken into account in the courts ’ analysis and that the measures adopted have effectively shielded her from the risk of sharing the flat with her former aggressors or their acquaintances in future. Nevertheless, assuming that the charges against the applicant ’ s aggressors have adequately addressed her complaints concerning their violent conduct and systematic harassment, the Court notes that it took the State authorities over twelve years to resolve the matter. 75. In view of this, the Court reiterates that for the purposes of Article 3, the protective measures should allow the authorities to respond as a matter of particular urgency in a manner proportionate to the perceived risk faced by the person concerned ( see D.F., cited above, §§ 91 and 95). Where a situation warrants institution of criminal proceedings, these proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention and allow for the examination of the merits of the case within a reasonable time (see, for example, M. and M., cited above, §§ 147 ‑ 1 52). 76. The Court accepts that at the early stages of the confrontation between the applicant and her flat co-owners the domestic authorities might have experienced certain difficulties in qualifying the situation in law. However, it has not been presented with a plausible explanation, which could justify the entire delay of over twelve-years. 77. As regards a possibility to initiate a private prosecution under Articles 125 and 126 of the Criminal Code (cited in paragraph 57 above) or to institute civil proceedings against the law-enforcement authorities for inaction, the Court reiterates that the crux of the applicant ’ s complaint was her systematic harassment. In the meantime, the national authorities, although aware of that situation, failed to take appropriate measures to punish the offenders and prevent further assaults and insults. Thus, the situation called for a swift intervention by the public officials. The Government have not shown that either of the aforementioned remedies could lead to such an intervention and effective resolution of the underlying systemic problem. 78. In these circumstances the Court dismisses the Government ’ s objection as to the non-exhaustion of domestic remedies previously joined to the merits and finds that the respondent State failed in discharging its positive duty under Article 3 of the Convention to protect the applicant from repeated verbal harassment and physical violence by the co-owners of her flat and their acquaintances on account of extreme delays in instituting and conducting public criminal proceedings against the co-owners of the applicant ’ s flat. 79. There has accordingly been a violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 80. The applicant also complained that the State authorities had failed to protect her home and private life from unwanted intrusion by strangers. She relied on Article 8 of the Convention in this respect. The provision in question, insofar as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. ... ” A. Admissibility 81. The Government alleged that the available domestic remedies in respect of the above complaint had also not been exhausted. In so far as the applicant ’ s complaint may have been related to the incidents of violent and abusive conduct by the co-owners of her flat and their guests and tenants, the Government adduced the arguments similar to those discussed above in respect of Article 3. 82. As regards the more trivial side of the conflict ( that is to say, disagreements concerning the manner in which the premises and household appliances had to be used) – in the Government ’ s view, the applicant had never tried to use the numerous civil-law remedies available for settling such conflicts. These remedies had included a claim for pecuniary and non-pecuniary damages, a demand to cease and desist from interfering with exercising the applicant ’ s right to use her property, or an action for establishing the rules of use of an object of joint ownership ( see the relevant provisions of Domestic Law in paragraph 56 above). 83. In the Government ’ s view, the applicant had not used any of these remedies, because she had not been genuinely interested in resolving the dispute and achieving harmonious relations with her flat co-owners. Her only wish had been to gain the entire flat for herself. This option had also been possible under domestic law under Article 365 of the Civil Code (see paragraph 56 above). However, from this point of view the State ’ s duty had not been to protect the applicant ’ s home from unwanted intrusions, but to ensure equal protection of the intersecting property interests of two private parties. The applicant had tried to use this remedy, however, as she had wanted to pay a symbolic, insignificant sum in compensation for her co ‑ owners ’ share, the judicial authorities could not be reproached for rejecting this proposal. It had always been open to the applicant to renegotiate dispossession of her flat co-owners on more reasonable conditions. 84. The applicant disagreed. She submitted that the one-bedroom flat, in which she had resided, was designed as a one-family residence. It had not been possible to divide it into two separate dwellings or somehow establish two separate households in it, enabling a senior lady to cohabit with unrelated young males in a sensible and harmonious manner. In any event, A.N. and V.S. had not intended to cohabit with the applicant. They had acquired a share in her flat with an obvious criminal intent: to extort the remaining share under grossly unfavourable terms by terrorising the applicant and creating intolerable living conditions. In this situation there could not have been any fair negotiation and balancing of private interests; only a criminal- law remedy would have been appropriate. The applicant had made an honest attempt to redeem her co-owners ’ share in the flat via civil court proceedings. She agreed that the price she had offered had been below the price, which could be obtained for it, if the flat had been sold in its entirety, free from any occupation or other encumbrances. However, in her view, a virtual share in an indivisible one-bedroom flat occupied by residents would have had no market value. In any event, the applicant ’ s opponents, according to the documents, had received their share in her flat free of charge, except the acquisition taxes calculated on the basis of the nominative value indicated in the gift deed. In these circumstances, payment of a higher compensation – onerous for a retired pensioner – would have amounted to unjustified enrichment for her antagonists. 85. The Court considers that the Government ’ s objection is closely linked to the substance of the applicants ’ complaints under Article 8 of the Convention and that it must therefore be joined to the merits. 86. It notes that otherwise 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 by the parties 87. The applicant alleged that the arrival of uninvited strangers in her flat constituted a gross intrusion into her home and private life. This was more so as the new cohabitants had refused to use the flat sensibly and had harassed and terrorised the applicant. For years all the applicant ’ s attempts to resolve the matter either by negotiation, civil proceedings or appeals to law-enforcement authorities had been futile and, unable to tolerate her co ‑ habitants, she had to seek refuge elsewhere and had found herself practically homeless. 88. The Government submitted that the respondent State had properly discharged its positive duties under Article 8 vis-à-vis the applicant, as there had been an appropriate legal and administrative framework in place to protect her home and private life from unwelcome intrusions. Among all other instruments, Article 365 of the Civil Code provided the applicant with a possibility to dispossess her flat co-owners of their share in the flat on the ground that her co-habitation with them was intolerable. However, it was important in this context that V.S. and subsequently A.N. had lawfully acquired their shares in the disputed flat. Accordingly, they had been entitled to possess, use and dispose of them on a par with the applicant. In these circumstances the applicant had to pay market-value compensation in order to dispossess them, and she did not want to do so. She could not expect the domestic law to give her the tools to obtain exclusive right to reside in the flat by herself without having paid fair compensation to its other co-owners. The State authorities could also not be held responsible for the applicant ’ s failure to use the other, softer legal tools mentioned in paragraph 82 above, which could help her negotiate fair terms of cohabitation in the flat with its co-owners. 2. The Court ’ s assessment 89. The Court notes that, in so far as the applicant ’ s complaint under Article 8 may relate to the acts of harassment and violence, it falls within the ambit of Article 8 (see, for example, Hajduová v. Slovakia, § 46, 30 November 2010; Sandra Janković, cited above, § 45; Remetin, cited above, § 90; and B.V. and Others, cited above, §§ 149-54). However, as the Court has already examined the applicant ’ s relevant submissions under Article 3 above, it is not necessary to address them also under Article 8 of the Convention (see, for example, Đorđević, cited above, § 93, and M. and M. cited above, § 143). 90. At the same time, the Court notes that there are other aspects of the applicant ’ s complaint under Article 8, which have not yet been examined by it. In particular, it follows from the applicant ’ s submissions that, in addition to her complaints about violence and harassment, she also complains (a) of the very fact that she was obliged to tolerate the presence inside her home of persons foreign to her household; and (b) of their disagreeable, but essentially non-criminal conduct (notably, discourteous use of the flat and the applicant ’ s belongings, spoliation of the flat amenities, noise and other nuisances, and so forth). 91. The Court considers that the criminal proceedings, in the course of which V.S. and A.N. were charged with extortion, eventually redressed these aspects of the applicant ’ s complaint. In particular, as follows from the Kyivskiy Court ’ s verdict of 12 October 2012, A.N. and V.S. were ordered to pay compensation to the applicant for pecuniary and non-pecuniary damage. In addition, they were also divested of their share in the flat as a result of the property confiscation order. However, regard being had to the extreme delays in the institution and conduct of these proceedings, which have already been discussed in paragraphs 76 and 7 8 above, their effectiveness in the applicant ’ s case was significantly compromised. Accordingly, the applicant ’ s rights under Article 8 of the Convention were set at naught for a very considerable period of time ( see Surugiu, cited above, §§ 60-67, and Udovičić, cited above, §§ 158-59). 92. At the same time, the Court reiterates that there is no absolute right under the Convention to obtain the prosecution or conviction of any particular person ( see Söderman v. Sweden [GC], no. 5786/08, § 83, ECHR 2013). While a criminal-law remedy may be necessary in cases relating to particularly serious encroachments upon the person ’ s physical or psychological integrity, in respect of less serious intrusions into the sphere protected by Article 8 the relevant obligation on the member States may be discharged by putting in place other, in particular, civil-law instruments, which, where necessary, should include such procedural remedies as the granting of an injunction (ibid, § 85). In the light of these observations, the Court must proceed to examine whether, in the specific circumstances of the case before it, the respondent State had an adequate non-criminal legal framework providing the applicant with acceptable level of protection against the intrusions on her privacy and enjoyment of her home (see, mutatis mutandis, ibid, § 91). 93. The Court reiterates that guarantees afforded by Article 8, and, in particular, the right to respect for home, among them, are of central importance to an individual ’ s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, in particular, Connors, cited above, § 82, and Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, § 44, 2 December 2010 ). A home is usually the place, where an individual is supposed to feel safe ( see Söderman, cited above, § 117) and sheltered from unwanted attention and intrusions. This concerns not only physical intrusions, such as unauthorised entries, but various nuisances, such as noise or smells and other forms of interference which preclude the inhabitants from quiet, undisturbed enjoyment of the amenities of their abode (see Udovičić, cited above, § 136). 94. In light of these considerations, the Court finds that sharing one ’ s home with uninvited strangers, regardless of how sensibly they behave, creates very important implications for a person ’ s privacy and other interests protected by Article 8. Accordingly, where a member State adopts a legal framework obliging a private individual, for one reason or another, to share his or her home with persons foreign to his or her household, it must put in place thorough regulations and necessary procedural safeguards to enable all the parties concerned to protect their Convention interests. 95. It appears that in the present case applicable law did not afford to the applicant any meaningful forum in which she could object against cohabitation with A.N., V.S. and their acquaintances on the ground that such cohabitation created disproportionate consequences for her rights guaranteed by Article 8 of the Convention (see, mutatis mutandis, McCann v. the United Kingdom, no. 19009/04, §§ 49-50 and 55, ECHR 2008; Ćosić v. Croatia, no. 28261/06, § 21-23, 15 January 2009; and B. v. the Republic of Moldova, no. 61382/09, § 74, 16 July 2013) and obtain appropriate and expeditious protection against unwanted intrusions into her personal space and home, including, if necessary, by way of an injunction order ( see, mutatis mutandis, Söderman, § 85). 96. In particular, it is notable that initially the flat was designed to be occupied and was occupied by a single family (the applicant ’ s family), then by the applicant alone. The legal arrangement, whereby V.S., a person outside the applicant ’ s family, received an entitlement to move into the flat, was created without the applicant ’ s consent having been sought. This arrangement, found to be lawful by the domestic courts ( see paragraphs 22 ‑ 23 above) also automatically gave V.S. the right to invite other persons to live there and to bestow his share in the flat without the applicant ’ s consent on other third parties. Accordingly, the applicant lost any control over how many persons would obtain the right to occupy her flat or over the choice of these persons. Thus, her one- bedroom flat was virtually converted into a hostel without the applicant having any means of objecting to such a change. 97. Similarly, after the aforementioned arrangement was created, the applicant had no legal remedy enabling her to argue that co-habitation with A.N., V.S. and their acquaintances had resulted in disproportionate burden for her ability to enjoy the rights guaranteed under Article 8. The Court is prepared to accept that the civil remedies, mentioned by the Government in paragraph 82 above, such as an action for damages, a demand to cease and desist from interfering with enjoyment of another ’ s possessions, or an action for establishing the rules of use of an object of shared property could be helpful in a situation where lawful cohabitants need to settle specific disagreements concerning the use of a common flat. However, it follows from the case-file that the situation in the present case was much less trivial. Notably, the applicant ’ s complaint was that her flat was not suitable for use by more than one family and that V.S. and A.N., had entered it by breaking in and taking possession of it against her will. The Government have not shown how the aforementioned remedies could address and redress the core of the above complaint. 98. The Court notes that the Government have also referred in their observations to Article 365 of the Civil Code, as a legal instrument, on the basis of which the cohabitation arrangement in the applicant ’ s case could be terminated by a competent court. This Article ( see the text in paragraph 56 above) established a possibility of dispossessing a co-owner of his/her share in an object of indivisible property, if other co-owners considered that joint use of this object was not possible. However, it follows from the text of this provision that it could be used only against the co-owners, whose share was “insignificant”. More importantly, it has not been shown by the Government that this remedy, apparently geared towards resolving the ownership disputes, could grant prompt relief for the applicant ’ s complaint concerning forced entry into the flat, which was her established “home” previously possessed by her family for years, against the applicant ’ s will and despite that it was not designed to accommodate more than one family. In light of the above, the Court fails to see how this procedure could have provided an expeditious and appropriate remedy for the applicant ’ s particular complaint concerning intrusion by strangers into her home and private space. Accordingly, the Court is not convinced that Article 365 of the Civil Code could provide any relief to the applicant, regardless of any price-related or other arguments. 99. It follows that neither the case-file material, nor the Government ’ s observations demonstrate that the applicant had any meaningful forum available to her for raising an argument that a duty to share her home with V.S., A.N., and their acquaintances disproportionately affected her private life and enjoyment of her home. Accordingly, the Court considers that the domestic legal framework did not provide the applicant with requisite procedural safeguards for protecting her right to respect for home and private life under Article 8 of the Convention. 100. Accordingly, the Court dismisses the Government ’ s objection concerning non-exhaustion raised in paragraphs 82-83 above. 101. Regard being had to the considerations presented in paragraphs 91 and 99 above, the Court finds that there has been a breach of Article 8 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 102. Lastly, the applicant also complained, under Article 6 of the Convention, about the outcome of two sets of her civil proceedings and referred to Articles 9, 14 and 17 of the Convention and Article 2 of Protocol No. 4 to the Convention in respect of the facts of the present case. 103. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 104. It follows that this part of the application must be declared inadmissible as being manifestly ill- founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. V. 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 initially claimed 100,000 euros (EUR) in respect of non-pecuniary damage on account of the alleged breach of Article 8 (in her reply to the Government ’ s observations of 10 April 2012) and a further EUR 200,000 in respect of the alleged breach of Article 3 of the Convention (in her reply to the Government ’ s additional observations of 25 December 2013). In addition, in her reply to the Government ’ s observations of 10 April 2012, she also asked that the respondent State be obliged to buy her share in the disputed flat at a fair price, corresponding to the market value of half the flat, in order to enable the applicant to buy another flat, which would belong to her exclusively. 107. The Government alleged that this claim was exorbitant and unsubstantiated. 108. The Court recalls that the case at issue concerned breaches of Articles 3 and 8 of the Convention. It does not see a correlation between the breaches of these provisions and a requirement to finance acquisition of a new flat for the applicant. It therefore dismisses this claim. On the other hand, the Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of breaches of Articles 3 and 8 of the Convention. Ruling on an equitable basis, it awards the applicant EUR 4 ,000 in respect of non-pecuniary damage. B. Costs and expenses 109. In her reply to the Government ’ s observations of 10 April 2012, the applicant also claimed legal fees for her representation before the Court, unspecified court fees and costs of translation of unspecified documents into English. She submitted some documents, including a copy of her contract with a firm called Dimex for legal representation; however, she did not specify the exact amount of her claim for legal fees or any other expenses. In her reply to the Government ’ s additional observations of 25 December 2013 the applicant did not reiterate her previous claim and did not submit any new claims under this head. 110. The Government pointed out that the applicant had been provided with legal aid to cover the costs of her representation before the Court, and that in any event she had failed to substantiate her claims for costs and expenses with appropriate documentary evidence. 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, the Court recalls that the applicant has been provided with legal aid and considers, regard being had to the documents in its possession and the above criteria, that the applicant ’ s claim for costs and expenses should be rejected for lack of substantiation. 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 3 (prohibition of inhuman or degrading treatment) of the Convention. It noted in particular that the repeated and premeditated nature of the verbal attacks to which the applicant was subjected coupled with the incidents of physical violence by a group of men against a single senior woman reached the threshold of severity required to come within the ambit of Article 3 and engaged the State’s positive duty to set in motion the protective legislative and administrative framework. Although the principal offenders were prosecuted and sentenced to significant prison terms, it nonetheless took the Ukrainian authorities over twelve years to resolve the matter. In view of the extreme delays in instituting and conducting the criminal proceedings, the Court found that Ukraine had failed to discharge its positive obligation under Article 3 of the Convention. |
9 | Adoption | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. Relevant domestic law 16. The relevant provisions of the Family Code concerning adoption were repealed by Government Emergency Ordinance no. 25/1997, (GEO no. 25/1997) published in the Official Gazette no. 120 of 12 June 1997. The relevant provisions concerning the annulment of adoption were as follows: Article 22 “(2) An adoption may be cancelled at the request of an adoptee who has reached the age of ten, or the Child Protection Commission in the adoptee ’ s area if the annulment of the adoption is in the best interests of the adoptee.” 17. The Adoption Act (Law no. 273/2004) repealed GEO no. 25/1997 and entered into force on 1 January 2005. The relevant provisions, as in force at the relevant time, read as follows: Article 56 “(1) A court may annul an adoption order if the adoption was sought for a reason other than the protection of the best interests of the adoptee or if the conditions provided for by law were not observed. (2) The court may dismiss a request for the annulment of an adoption if it considers that maintaining the adoption is in the best interests of the adoptee.” Article 57 “Any interested person may request the annulment of an adoption. After the adoptee obtains his or her full legal capacity, he or she is the only person who can challenge the validity of the adoption.” B. Relevant international standards 1. European Convention on the Adoption of Children, opened for signature in Strasbourg on 24 April 1967 and ratified by Romania on 18 May 1993 Article 10 “(1) Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock. Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother. (2) When the rights and obligations referred to in paragraph 1 of this article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist. Nevertheless, the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate, illegitimate or adopted child. In addition the law may preserve the obligation of the parents to maintain (in the sense of l ’ obligation d ’ entretenir and l ’ obligation alimentaire ) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation. (3) As a general rule, means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for, or in addition to, his own. (4) If the parent of a child born in lawful wedlock has a right to the enjoyment of that child ’ s property, the adopter ’ s right to the enjoyment of the adopted person ’ s property may, notwithstanding paragraph 1 of this article, be restricted by law. (5) In matters of succession, in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother, an adopted child shall, for the like purposes, be treated as if he were a child of the adopter born in lawful wedlock.” 2. European Convention on the Adoption of Children (Revised), opened for signature on 27 November 2008 and ratified by Romania on 2 January 2012 18. The legal and social changes that have occurred in Europe since the first Council of Europe Convention on child adoption have led a large number of States parties to amend their adoption laws. As a result, certain provisions of the 1967 Convention have gradually become outdated. With that in mind, a revised Convention was drawn up in line with the social and legal developments whilst taking the child ’ s best interests into account. 19. The Council of Europe ’ s European Convention on the Adoption of Children (Revised) was opened for signature on 27 November 2008. Romania signed it on 4 March 2009 and ratified it on 2 January 2012. Article 11 – Effects of an adoption “(1) Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin.” Article 14 – Revocation and annulment of an adoption “(1) An adoption may be revoked or annulled only by decision of the competent authority. The best interests of the child shall always be the paramount consideration. (2) An adoption may be revoked only on serious grounds permitted by law before the child reaches the age of majority. (3) An application for annulment must be made within a period prescribed by law.” THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTION 20. The Government invited the Court to reject the application on the ground that the applicant had failed to comply with the requirement under Article 35 § 1 of the Convention to submit the application within six months. They submitted that although the applicant had sent a first letter to the Court on 12 October 2005, a duly completed application form had been submitted only on 17 January 2006. They concluded that as the six-month limit for submitting an application to the Court had expired on 15 October 2005 the application was out of time. 21. The applicant disagreed. She submitted that after she had sent her application on 14 October 2005 she had completed and returned the official application form within the deadline set by the Court. Therefore, she was asking the Court to dismiss this objection as unfounded. 22. From the analysis of the material submitted by the applicant the Court notes that she had sent a letter containing all the relevant information for submitting an application on 14 October 2005. On 19 December 2005 the Court informed the applicant that her application had been registered and asked her to fill in a standard application form within six weeks of reception of the Court ’ s letter. The applicant returned a duly completed application form on 17 January 2006. The Court, therefore, finds no reason to conclude that the applicant did not comply with the six-month time-limit, and rejects the Government ’ s preliminary objection. II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION 23. The applicant complained that her right to respect for her private and family life had been violated because of the annulment of her adoption by unlawful decisions of the domestic courts. She relied on Articles 6 § 1 and 8 of the Convention. 24. The Court reiterates that it has previously held that whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Kutzner v. Germany, no. 46544/99, § 56, ECHR 2002 ‑ I, and Kurochkin v. Ukraine, no. 42276/08, § 31, 20 May 2010 ). 25. The Court therefore considers that the applicant ’ s complaints fall to be examined solely 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.” A. Admissibility 26. The Government submitted that Article 8 of the Convention was not applicable to the applicant ’ s case, and asked the Court to dismiss the application as inadmissible ratione materiae. In this connection they contended that in the instant case the family relationship to be protected under Article 8 had not arisen from a lawful and genuine adoption. 27. The applicant disagreed, and maintained that the relationship built between her and her adoptive mother could be considered sufficient to be covered and protected by Article 8 of the Convention. 28. The Court notes that the instant case concerns the proceedings for the annulment of the applicant ’ s adoption order, thirty-one years after it had been issued. The domestic courts ’ decisions by which the applicant ’ s adoption was declared void directly affected her private and family life. The Court considers that the applicant ’ s complaint relates to her private and family life and falls within the scope of Article 8 of the Convention. Therefore, the Government ’ s objection has to be dismissed. 29. The Court further notes that this complaint 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 ’ submissions 30. The applicant argued that the adoption had been concluded in accordance with the legal provisions in force at that time. A social investigation had been carried out and witness statements recorded. She also pointed out that she had been raised and educated by her adoptive mother since she was nine years old, and stated that their relationship had been based on affection, responsibility, and mutual moral and material support. The applicant submitted that the annulment of her adoption had represented an intrusion in her family life which had no legitimate aim and was disproportionate and arbitrary. 31. As regards the legal proceedings for the annulment of her adoption, the applicant claimed that her sister had not had locus standi to lodge the action for annulment and that the reasons provided by the domestic courts for allowing the action had not been relevant and sufficient. The applicant did not agree that she had to raise the objection of lack of locus standi of her sister again before the appeal court. She argued that on the basis of the principle of the active role of the courts, provided for by Article 129 § 5 of the Romanian Code of Civil Procedure, the appeal court should have taken into account the objection raised at the lower level of jurisdiction, as it related to an absolute and peremptory objection. 32. The Government considered that the measure complained of was lawful, pursued a legitimate interest and was necessary and proportionate. They pointed out that the reasons adduced by the domestic courts for the annulment of the adoption were relevant and sufficient. 33. As regards the locus standi of the applicant ’ s sister to lodge a claim seeking the annulment of adoption, the Government pointed out that the applicant had not raised this objection again before the appeal court. 2. The Court ’ s assessment (a) Whether there has been an interference 34. The Court reiterates that the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention, and that such a relationship, arising from a lawful and genuine adoption, may be deemed sufficient to attract such respect as may be due for family life under Article 8 of the Convention (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, §§ 140 and 148, ECHR 2004 ‑ V (extracts)). 35. In the instant case, the Court considers that the annulment of the adoption order, thirty-one years after it had been issued, at the request of the applicant ’ s sister, amounted to an interference with the applicant ’ s right to respect for her family life as guaranteed by Article 8 § 1 of the Convention. (b) Whether the interference was justified 36. Such an interference can be considered justified only if the conditions of the second paragraph of Article 8 are satisfied. It must be “in accordance with the law”, have an aim which is legitimate under that paragraph, and must be “necessary in a democratic society” for the aforesaid aim (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 72, ECHR 1999 ‑ VI). The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see Saviny v. Ukraine, no. 39948/06, § 47, 18 December 2008). ( i ) In accordance with the law 37. The expression “in accordance with the law” under Article 8 § 2 requires first that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008). 38. Regarding whether the interference was in accordance with the law, the Court notes that at the time the applicant ’ s sister lodged her action the relevant provisions concerning adoption were to be found in GEO no. 25/1997 (see paragraph 16 above). On 26 June 2004, after the first ‑ instance court had delivered its judgment but while the application for the annulment of the applicant ’ s adoption was before the appeal court, the Adoption Act (see paragraph 17 above) entered into force. 39. The Court observes that the decisions concerning the annulment of the applicant ’ s adoption were taken upon an application by her sister, also adopted by the applicant ’ s adoptive mother. In this connection the applicant claimed before the first-instance court that her sister had no locus standi to challenge the adoption order. The applicant based her objection on the provisions of the Code of Civil Procedure, and claimed that her sister had not proved a legitimate interest for lodging her application. The first ‑ instance court had dismissed the applicant ’ s objection, holding that the applicant ’ s sister had a legitimate interest in obtaining the annulment of the adoption, as the applicant and her sister were parties to the proceedings for the partition of ten hectares of forest (see paragraph 9 above) inherited from their adoptive mother. The Court notes that under Article 22 of GEO 25/1997, in force at that time, only an adoptee who had reached the age of ten or the Child Protection Commission could challenge the adoption order, and then only on condition that the cancellation served the best interests of the child. 40. The Court also notes that the applicant did not raise the objection of lack of locus standi again before the appeal court. The appeal court had rendered its final decision on 15 April 2005, three months after the Adoption Act had entered into force. Section 57 of the Adoption Act states that after an adoptee obtains full legal capacity only the adoptee can seek annulment of his or her adoption. The Court considers that although the applicant had not cited these provisions before the appeal court, the latter court should have raised this objection proprio motu, on the basis of the active role the courts have to play in the administration of justice, especially because the lack of locus standi is a peremptory and absolute objection in civil proceedings. 41. In the light of the foregoing the Court is doubtful that the measure at issue applied by the authorities was in accordance with the law within the meaning of Article 8 of the Convention. (ii ) Legitimate aim 42. As regards the legitimate interest pursued by the domestic courts, the Court notes that the annulment of the applicant ’ s adoption did not serve the interests of either the adopted child or the adoptive mother. The main consequence of the annulment was the disruption of the applicant ’ s family tie with her already dead mother and the loss of her inheritance rights to the benefit of her sister. Taking into account that the annulment proceedings were brought by the applicant ’ s sister in order to keep for herself the whole land inherited from their adoptive mother, the Court also expresses doubts that a legitimate aim was pursued by the impugned decisions. (iii) Necessary in a democratic society 43. The Court reiterates that in order to determine whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of Article 8 § 2 (see Kutzner, cited above, § 65, and Moser v. Austria, no. 12643/02, § 64, 21 September 2006). 44. In doing so, it is not the Court ’ s task to substitute itself for the domestic authorities, but rather to review under the Convention the decisions that those authorities have taken in their exercise of their power of assessment (see K. and T. v. Finland [GC], no. 25702/94, § 154). 45. Even assuming that the authorities enjoy a wide margin of appreciation in assessing the need for the annulment of the adoption (see mutatis mutandis, Kurochkin v. Ukraine, no. 42276/08, § 52, 20 May 2010 and Ageyevy v. Russia, no. 7075/10, § 127, 18 April 2013), the Court must still be satisfied in this particular case that there are circumstances which justify the annulment of the applicant ’ s adoption thirty-one years after the adoption order had been issued. 46. The Court further notes that where the existence of a family tie has been established the State must in principle act in a manner calculated to enable that tie to be maintained. Splitting up a family is an interference of a very serious order. Such a step must be supported by sufficiently sound and weighty considerations not only in the interests of the child (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000 ‑ VIII) but also in respect of the legal certainty. 47. Turning to the facts of the present case, the Court observes that the reason for the annulment of the adoption of the applicant was based on the domestic courts ’ consideration that the only aim of the applicant ’ s adoption had been the furtherance of the patrimonial interests of the adoptive mother and the adopted child, and the adoption had not been intended to ensure a better life for the applicant. 48. The Court notes that as a general rule the legal provisions governing adoption are designed primarily for the benefit and protection of children. Usually, child welfare officials will seek a termination order on the basis of a judicial ruling that the parent is unfit to rear the child and that severance of the legal status would serve the child ’ s interests. The annulment of adoption is not envisaged as a measure against the adopted child and cannot be interpreted in the sense of disinheriting an adopted child eighteen years after the death of her adoptive mother and thirty-one years after the adoption order had been issued. In this respect the Court also notes that under section 57 of the Adoption Act, which entered into force on 1 January 2005, only the adopted child may challenge the validity of the adoption after the adoptee has obtained his or her full legal capacity. 49. If subsequent evidence reveals that a final adoption order was based on fraudulent or misleading evidence, the interests of the child should remain paramount in establishing a process to deal with any damage caused to the adoptive parent as a result of the wrongful order. 50. In the light of the foregoing, in the Court ’ s opinion the findings of the domestic courts on the annulment of the adoption of the applicant were not supported by relevant and sufficient reasons justifying such an interference in the applicant ’ s family life. The arguments contained in the court decisions are rather vague and do not provide sufficient justification for the application of such a radical measure by the courts in respect of the applicant ’ s family rights. 51. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 52. The applicant further complained that her property rights had been infringed, as, after the annulment of her adoption, she lost title to the five hectares of forest she had inherited from her adoptive mother. She relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. The objection of non-exhaustion of domestic remedies 53. The Government maintained that the applicant had not exhausted the domestic remedies afforded. They noted that the applicant had not filed an appeal against the judgment rendered by the Câmpulung Moldovenesc District Court on 22 September 2006. They also pointed out that the action for division of the land between the sisters lodged by the applicant had been dismissed on the ground that the applicant had failed to pursue her action. 54. The applicant maintained that the proceedings referred to by the Government had not had any prospect of success after the annulment of her adoption. 55. The Court notes that the annulment of the applicant ’ s adoption by a final decision of 15 April 2005 had as direct consequence the loss of the applicant ’ s inheritance rights. Therefore, the Court considers that the continuation of the civil proceedings concerning the land inherited from the applicant ’ s adoptive mother could not provide any redress for the violations alleged by the applicant. Therefore the Court dismisses the Government ’ s preliminary objection of non-exhaustion. 2. The objection rationae materiae 56. The Government submitted that the applicant had no possession as the ownership title which conferred her right to the land had been annulled by a final decision of a domestic court. 57. The applicant contested the Government ’ s argument. 58. The Court considers that the objection is closely linked to the merits of the applicant ’ s complaint. It will therefore deal with the objection in its examination of the merits below. It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 59. The applicant maintained that by allowing the action for the annulment of the adoption and subsequently the action for the annulment of the ownership title to the land the Romanian State had abusively and disproportionally interfered with her property right over the land. 60. The Government submitted that if the Court considered that there was an interference with the applicant ’ s rights, such interference was legal, justified and proportionate. 61. Having regard to its reasoning and findings under Article 8 and in view of the fact that the alleged violation of Article 1 of Protocol No. 1 is the direct outcome of the proceedings that gave rise to the breach of Article 8 of the Convention, the Court rejects the Government ’ s objection as to incompatibility ratione materiae and finds that there has also been a violation of Article 1 of Protocol No. 1 to the Convention (compare and contrast, Marckx v. Belgium, 13 June 1979, § 63, Series A no. 31; Inze v. Austria, 28 October 1987, §§ 38-40, Series A no. 126; Mazurek v. France, no. 34406/97, §§ 41-43, ECHR 2000 ‑ II, and Fabris v. France [GC], no. 16574/08, §§ 51-55, ECHR 2013 (extracts)). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 62. Lastly, the applicant complained under Article 6 § 1 of the Convention of bias on the part of the domestic judges. Relying on Article 14 of the Convention the applicant alleged discriminatory treatment between herself and her sister with regard to inheritance rights following the annulment of her adoption. 63. The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as they fall within its jurisdiction, the Court 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 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 64. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 65. The applicant claimed 30,000 euros (EUR) in compensation for pecuniary damage. She submitted that this amount represented the financial impact of the loss of use of the five hectares of forest she had inherited. She also claimed EUR 10,000 in compensation for non-pecuniary damage, representing the suffering related to the cancelling of her adoption. 66. The Government argued that the applicant had not submitted any documents to support her claim for pecuniary damages, and that therefore this claim should be dismissed as speculative. As regards the amount requested by the applicant in compensation for non-pecuniary damage the Government submitted that the amount was too high. 67. 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 in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000 ‑ XI). If one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000 ‑ IV). 68. The Court has found a violation of Articles 8 and 1 of Protocol No. 1 on account of the annulment of the applicant ’ s adoption and the consequent loss of her inheritance rights. In addition to a degree of pecuniary loss, the applicant must have also suffered distress as a result of these circumstances. Therefore, the Court considers it reasonable to award the applicant a total of EUR 30,000 to cover all heads of damage. B. Costs and expenses 69. The applicant also claimed EUR 550 for costs and expenses incurred before the domestic courts and EUR 1,500 for those incurred before the Court. 70. The Government contended that according to the documents submitted by the applicant she had paid only EUR 738 to the lawyer who had represented her before the Court, and that the amount of EUR 1,500 should therefore not be granted. 71. 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 1,200 for costs and expenses. C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | This was the first occasion on which the Court had to consider the annulment of an adoption order in a context where the adoptive parent was dead and the adopted child had long reached adulthood. In the applicant’s case, the Court, finding that the annulment decision was vague and lacking in justification for the taking of such a radical measure, concluded that the interference in her family life had not been supported by relevant and sufficient reasons, in violation of Article 8 (right to respect for private and family life) of the Convention. The Court noted in particular that, in any event, the annulment of an adoption should not even be envisaged as a measure against an adopted child and underlined that in legal provisions and decisions on adoption matters, the interests of the child had to remain paramount. The Court also held that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the Convention, on the account of the disproportionate interference with the applicant’s property right over the disputed land. |
159 | Prenatal medical tests | II. RELEVANT DOMESTIC LAW AND PRACTICE 36. Before enactment of the Law of 4 March 2002 the legal position was established by the relevant case-law. A. Relevant case-law before the Law of 4 March 2002 37. An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts, depending on the identity of the defendant. If the defendant is a private doctor or a private medical laboratory, the dispute is referred to the ordinary courts. Where, on the other hand, as in the instant case, a public hospital service is involved, the dispute falls within the jurisdiction of the administrative courts. 1. The Conseil d ’ Etat 38. The Conseil d ’ Etat gave judgment on 14 February 1997 (C.E., Sect., 14 February 1997, Centre hospitalier de Nice v. Quarez, Rec. p.44). Mrs Quarez, then aged 42 years, had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying. Although the result of that examination revealed no anomaly, she gave birth to a child suffering from trisomy 21, a condition detectable through the chromosome test carried out. The Conseil d ’ Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence, since Mrs Quarez had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place. 39. Secondly, a distinction was drawn between the disabled child ’ s entitlement to compensation and that of its parents. With regard to the disabled child ’ s right to compensation, the Conseil d ’ Etat ruled: “In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child M. from the trisomy from which he suffers, when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make-up was the consequence of an amniocentesis, the Lyon Administrative Court of Appeal made an error of law”. On the other hand, with regard to the parents ’ right to compensation, the Conseil d ’ Etat noted: “By asking for an amniocentesis, Mrs Quarez had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived, whose probability, given her age at the time, was relatively high.” It went on to say that in those conditions the hospital ’ s negligence had “wrongly led Mr and Mrs Quarez to the certainty that the child conceived was not trisomic and that Mrs Quarez ’ s pregnancy could be taken normally to term” and that “this negligence, as a result of which Mrs Quarez had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under Article L.162-12 of the Public Health Code, [should] be regarded as the direct cause of the prejudice caused to Mr and Mrs Quarez by their child ’ s infirmity”. 40. With regard to compensation, the Conseil d ’ Etat took into account, under the head of pecuniary damage, the “special burdens, particularly in terms of specialist treatment and education” made necessary by the child ’ s infirmity, and awarded the parents an annuity to be paid throughout the child ’ s life. It also ordered the hospital to pay compensation for their non ‑ pecuniary damage and the disruption to their lives. 41. Thus the Conseil d ’ Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother ’ s pregnancy. It did accept on the other hand that the parents of the child born with a disability were entitled to compensation and made an award not only in respect of their non-pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage, specifying that the latter included the special burdens which would arise for the parents from their child ’ s infirmity (expenditure linked to specialist treatment and education, assistance from a helper, removal to a suitable home or conversion of their present home, etc. ). 42. The judgment did not attract particular comment and led to a line of case-law followed thereafter by the administrative courts. 2. The Court of Cassation 43. The case-law of the ordinary courts was laid down by the Court of Cassation on 17 November 2000 (Cass, Ass. Plén., 17 November 2000, Bull. Ass. Plén ., no. 9) in a judgment which was widely commented on (the Perruche judgment). In the Perruche case a woman had been taken ill with rubella at the start of her pregnancy. Having decided to terminate the pregnancy if the foetus was affected, she took tests to establish whether she was immunised against the disease. Because of negligence on the part of both her doctor and the laboratory, she was wrongly informed that she was immunised. She therefore decided not to terminate the pregnancy and gave birth to a child which suffered from grave disabilities resulting from infection with rubella in the womb. The Court of Cassation held: “Since the negligence on the part of the doctor and the laboratory in performing the services for which they had contracted with Mrs X. prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child, the child may claim compensation for the damage resulting from that disability and caused by the negligence found.” Thus, contrary to the Conseil d ’ Etat, the Court of Cassation accepted that a child born disabled could himself claim compensation for the prejudice resulting from his disability. In this case therefore account was taken of the pecuniary and non-pecuniary damage suffered by both the child and the parents, including the special burdens arising from the disability throughout the child ’ s life. 44. It thus appears that in the same circumstances both the Court of Cassation and the Conseil d ’ Etat base their approach on a system of liability for negligence. However, the Court of Cassation recognises a direct causal link between the medical negligence and the child ’ s disability, and the prejudice resulting from that disability for the child itself. The Conseil d ’ Etat does not recognise that link but considers that the negligence makes the hospital liable vis-à-vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained. Both lines of case-law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child ’ s life. However, since the Conseil d ’ Etat considers that damage to have been sustained by the parents, whereas the Court of Cassation considers that it is sustained by the child, there may be significant differences in the nature and amount of such compensation, depending on whether the case-law of the former or the latter court is being followed. 45. The judgment of 17 November 2000 was upheld several times by the Court of Cassation, which reaffirmed the principle of compensation for the child born disabled, subject to proof, where appropriate, that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied (Cass., Ass. plén., three judgments of 13 July 2001, BICC, no. 542, 1 October 2001; see also Cass., Ass. plén., two judgments of 28 November 2001, BICC, 1 February 2002). 46. The Perruche judgment drew numerous reactions from legal theorists, but also from politicians and from associations of disabled persons and practitioners (doctors, obstetrical gynaecologists and echographers). The last-mentioned group interpreted the judgment as obliging them to provide a guarantee, and the insurance companies raised medical insurance premiums. 3. Liability for negligence 47. Both the Conseil d ’ Etat and the Court of Cassation took as their starting point a system of liability for negligence. In French law, under the general rules on the question, the right to compensation for damage can be upheld only if the conditions for liability are first satisfied. That means that there must be prejudice (or damage), negligence and a causal link between the damage and the negligence. More particularly, with regard to the liability of a public authority, for compensation to be payable the prejudice, which it is for the victim to prove, must be certain. Loss of opportunity constitutes certain prejudice, provided that the opportunity was a serious one. In the present case the prejudice resulted from a lack of information, or inadequate or incorrect information, about the results of an examination or analysis. In such a case, before the Law of 4 March 2002 was enacted, negligence falling short of gross negligence was sufficient. As to the relation between cause and effect, a direct causal link was established between the hospital ’ s negligence and the parents ’ prejudice (see the above ‑ mentioned Quarez judgment). 48. Still in the sphere of administrative law, the amount of compensation is governed by the general principle of full compensation for damage (neither impoverishment nor enrichment of the victim). Compensation may take the form of a capital sum or an annuity. According to the principle of the equal validity of claims for all heads of damage, both pecuniary damage and non- pecuniary damage confer entitlement to compensation. B. Law no. 2002-303 of 4 March 2002 on patients ’ rights and the quality of the health service, published in the Official Gazette of the French Republic on 5 March 2002 49. The Law of 4 March 2002 put an end to the position established by the case-law mentioned above, of both the Conseil d ’ Etat and the Court of Cassation alike. Its relevant parts provide as follows: Section 1 “I. No one may claim to have suffered damage by the mere fact of his or her birth. A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it. Where the liability of a health -care professional or establishment is established vis-à-vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence ( faute caractérisée ), the parents may claim compensation in respect of their damage only. That damage cannot include the special burdens arising from the disability throughout the life of the child. Compensation for the latter is a matter for national solidarity. The provisions of the present sub-section I shall be applicable to proceedings in progress, except for those in which an irrevocable decision has been taken on the principle of compensation. III. Law no. 2002-303 ’ s compatibility with international law (1) ... The object of section 1 of the Law of 4 March 2002 is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents, differing from the system which had emerged from the case-law of the administrative and ordinary courts. The new system provides for compensation, by means of an award to be assessed by the courts alone, for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of the child born with a disability which, on account of gross medical negligence, was not detected during pregnancy. It prevents children born with a disability which, on account of medical negligence, was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives, whereas such compensation had previously been possible under the case-law of the ordinary courts. It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child ’ s disability throughout its life, whereas such compensation had previously been possible under the case-law of the administrative courts. Lastly, it makes compensation for other heads of damage suffered by the child ’ s parents subject to the existence of gross negligence, whereas the case-law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence. This new system, which was put in place by Parliament on general - interest grounds relating to ethical considerations, the proper organisation of the health service and the equitable treatment of all disabled persons, is not incompatible with the requirements of Article 6 § 1 of [the Convention], with those of Articles 5, 8, 13 and 14 of [the Convention], with those of Article 1 of Protocol No. 1 [to the Convention] or with those of Articles 14 and 26 of the Covenant on Civil and Political Rights. (2) The last sub-paragraph of paragraph I of section 1 makes the provisions of paragraph I applicable to pending proceedings “except for those in which an irrevocable decision has been taken on the principle of compensation”. The general - interest grounds taken into account by Parliament when it laid down the rules in the first three sub-paragraphs of paragraph I show, in relation to the points raised in the request for an opinion, that the intention behind the last sub-paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings, while rightly reserving final judicial decisions.” D. French national solidarity towards disabled persons 1. Situation before February 2005 52. French legislation (see Law no. 75-534 of 30 June 1975 on orientation in favour of disabled persons, which set up the basic framework, and later legislation) provides compensatory advantages to disabled persons based on national solidarity in a number of fields (such as the right to education for disabled children and adults, technical and human assistance, financial assistance, etc.). In particular, the families of disabled persons are entitled to a special education allowance ( Allocation d ’ éducation spéciale – “ the AES” ). This is a family benefit paid from the family allowance funds, provided both the child and its parents are resident in France. The AES is granted by decision of the Special Education Board of the département in which the claimant lives, after the file has been studied by a multidisciplinary technical team. First the Special Education Board takes formal note of the child ’ s disability and assesses it. For entitlement to the AES, the level of disability found must at least exceed 50%. Where the disability exceeds 80%, entitlement to the AES is automatic; if the disability is assessed at between 50% and 80%, payment of the allowance is not automatic. It is subject to the child ’ s need for pedagogical, psychological, medical, paramedical and other forms of assistance. The AES is a two-level benefit: the basic allowance plus top-up payments. The first level is automatically payable where the conditions mentioned above are satisfied. The basic rate of AES is EUR 115 per month (the figure supplied by the Government on 16 March 2003 ). Where the child ’ s state of health requires substantial expenditure or the assistance of a third person, this may then confer entitlement to one of the six levels of AES top-up payments, which are added to the basic rate. The first five top-up payments depend on the level of expenditure required by the child ’ s state of health, the time for which the assistance of a third person is necessary, or a combination of both. The sixth level of top-up payment is for the most severe cases, where the child ’ s state of health requires the assistance of a third person all through the day and the families have to provide constant supervision and treatment. 2. Changes made by Law no. 2005-102 of 11 February 2005 on equal rights and opportunities, participation and citizenship for disabled persons, published in the Official Gazette of the French Republic on 12 February 2005 53. The Law of 11 February 2005 emerged from a legislative process launched as far back as July 2002 with the intention of reforming the system of disability compensation in France. It was pointed out in particular that following the enactment of the Law of 4 March 2002 it was necessary to legislate again “to give effective substance to national solidarity” (see the Information Report produced on behalf of the Senate ’ s Social Affairs Committee by Senator P. Blanc, containing 75 proposals for amending the Law of 30 June 1975, appended to the record of the Senate ’ s sitting on 24 July 2002, p. 13). 54. The new law makes a number of substantial changes. In particular, it includes for the first time in French law a definition of disability and introduces a new “compensatory benefit” to be added to existing forms of assistance. 55. To that end, the Law of 11 February 2005 amends the Social Action and Family Code. Its relevant provisions are worded as follows: Title I: General provisions Section 2 “I. ... A disability, within the meaning of the present Law, is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial, lasting or permanent impairment of one or more physical, sensory, mental, cognitive or psychological functions, a multiple disability, or a disabling health disorder. ... Every disabled person shall be entitled to solidarity from the whole national community, which, by virtue of that obligation, shall guarantee him or her access to the fundamental rights of all citizens, and the full exercise of citizenship. The State shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans. ... II. – 1. The first three sub-paragraphs of the first paragraph of section 1 of Law no. 2002-303 of 4 March 2002 on patients ’ rights and the quality of the health service shall become Article L. 114-5 of the Social Action and Family Code. 2. The provisions of Article L. 114-5 of the Social Action and Family Code, as amended by sub-paragraph 1 of the present paragraph II, shall be applicable to proceedings in progress on the date of the entry into force of the above-mentioned Law no. 2002-303 of 4 March 2002, except for those in which an irrevocable decision has been taken on the principle of compensation.” ... Title III: Compensation and resources Chapter 1: Compensation for the consequences of disability Section 11 “ ... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment, or his or her age or lifestyle. That compensation shall consist in meeting his or her needs, including nursery care in early childhood, schooling, teaching, education, vocational insertion, adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy, developing or improving the supply of services, in particular to enable those around the disabled person to enjoy respite breaks, developing mutual support groups or places in special establishments, assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment, or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by Title XI of Book 1 of the Civil Code. The above responses, adapted as required, shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone. The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan, written by himself or herself or, failing that, where he or she is unable to express an opinion, with or for him or her by his or her legal representative.” Section 12 Compensatory benefit “ ... I. – Every disabled person stably and regularly resident in metropolitan France ... above the age at which entitlement to the disabled child ’ s education allowance [formerly the AES] begins ..., whose age is below the cut-off point to be laid down by decree and whose disability matches the criteria to be laid down by decree, taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan, shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable, at the wishes of the beneficiary, either in kind or in money. ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 59. The applicants complained of section 1 of Law no. 2002-303 of 4 March 2002 on patients ’ rights and the quality of the health service (see paragraph 49 above). They submitted that that provision had infringed their right to the peaceful enjoyment of their possessions and breached Article 1 of Protocol No. 1 to the Convention, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Arguments of the parties 1. The applicants 60. The applicants observed that before the enactment of the Law of 4 March 2002 they had brought proceedings seeking full compensation for the damage they had sustained, and in particular for the damage consisting in the special burdens arising from their child ’ s disability throughout his life. They submitted that since the conditions for declaring AP-HP liable on the basis of the above-mentioned Quarez judgment (see paragraphs 38 to 42) were satisfied, their claims should have been met in full. They therefore had a possession within the meaning of Article 1 of Protocol No. 1 to the Convention, namely a compensation claim against AP-HP, in respect of which they had a legitimate expectation of obtaining judgment in their favour (see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332). Since the Law of 4 March 2002 was applicable to pending proceedings, including their case, its effect had been to deprive them of their claim. Its enactment therefore constituted “interference” with their right to the peaceful enjoyment of their possessions, as indeed the Government acknowledged. As regards the legitimacy of the interference, the applicants submitted that it had not struck a fair balance between the demands of the general interest (regard being had in particular to the reasons for the legislation ’ s enactment, which could not justify making it retrospective) and protection of their fundamental rights, since the effect of the law concerned had been to deprive them of their claim without effective compensation. They further stressed the enormous and disproportionate impact of the decision to make the new legislation immediately applicable to pending proceedings, bearing in mind in particular the fact that it referred to arrangements for assisting disabled persons through reliance on national solidarity, which they considered inadequate, vague and imprecise. In that connection, they submitted that although the recently enacted Law of 11 February 2005 (see paragraphs 53 to 58 above) had brought in a new benefit to compensate for disability, it could not cancel out the disproportion given the form that this compensatory benefit system was to take, and it still left the applicants to bear an excessive burden. 2. The Government 61. Relying likewise on the Court ’ s above-mentioned Pressos Compania Naviera S.A. and Others judgment, the Government submitted that it was not possible to establish as a general rule that before enactment of the Law of 4 March 2002 and in the light of the case-law then applicable the parents of children born with disabilities as a result of a medical error were certain to receive compensation as a matter of course. They did not therefore systematically have a “legitimate expectation” of having their claims met which could have been frustrated by the Law ’ s enactment. The Government acknowledged, however, that it was a different matter in the present case in so far as AP-HP had explicitly and unreservedly admitted liability towards the applicants. When the new legislation came into force there had therefore been no doubt about the principle of compensation, which, in accordance with the settled case-law established since the time of the above-mentioned Quarez judgment, covered the special burdens arising for the parents from their child ’ s infirmity. Before the entry into force of the Law of 4 March 2002 the applicants could therefore legitimately expect to be compensated for those “special burdens”, a head of damage which had been excluded by the new legislation. The Government accordingly accepted that there had been interference with the right to the peaceful enjoyment of a “possession”. 62. As regards, on the other hand, the legitimacy of that interference, the Government argued that the partial deprivation of possessions the applicants had suffered could not be declared contrary to Article 1 of Protocol No. 1 to the Convention, given, inter alia, the aim of the Law of 4 March 2002, the main object of which had been to clarify a system of liability for medical acts which had been raising legal and ethical problems and which, as the Government stressed at the hearing, had been established by a recent judgment (the Quarez judgment not having been delivered until 1997, whereas the applicants ’ child had been born in 1996). The new legislation had not really been retrospective; after modifying the existing legal situation it had merely made the new rules immediately applicable to pending proceedings – a common practice. Referring to the opinion given by the Conseil d ’ Etat on 6 December 2002, still with the aim of establishing the legitimacy of the interference, the Government next referred to the general-interest considerations which, they submitted, had justified the enactment of the legislation complained of and its applicability to pending proceedings. These included, in the first place, ethical reasons, reflected mainly in paragraph I of section 1. In the light of the reactions to the above-mentioned Perruche judgment (see paragraphs 43 to 46), Parliament had intervened to provide a coherent solution to a problem that had been the subject of national debate and had raised crucial ethical issues concerning, inter alia, human dignity and the status of the unborn child. The main aim had been to exclude recognition of a child ’ s right to complain of being brought into the world with a congenital disability, a matter on which society had been required to make a fundamental decision. That was why there could be no difference in treatment between pending proceedings depending on whether they had been brought before or after the Law ’ s promulgation. Secondly, there were questions of natural justice. It was argued that the legislation in issue reflected the need to ensure fair treatment for all disabled persons whatever the severity and cause of their disability. Such intervention had been all the more necessary because, following the Quarez and Perruche judgments, the system of compensation for disabled persons had become unsatisfactory. That concern for fair treatment, it was submitted, was the reason why the legislation had been made immediately applicable, so that no distinction would be drawn between disabled persons in accordance with the date on which their applications had been lodged, whether before or after the Law ’ s promulgation. Natural justice had also prompted the decision to abolish the rule requiring health-care workers and establishments to pay compensation for disabilities not detected during pregnancy, which was perceived as deeply unfair by obstetricians and doctors performing prenatal ultrasound scans. Lastly and above all, Parliament had intervened for reasons having to do with the proper organisation of the health service, which was under threat as a result of the discontent expressed by health-care practitioners in the wake of the above-mentioned Perruche judgment. In the face of strikes, resignations and refusals to carry out ultrasound scans, the legislature had acted to ensure that there would continue to be sufficiently well-staffed medical services in the fields of obstetrics and ultrasound scanning and that pregnant women and unborn children would receive medical attention in satisfactory conditions. 63. The Government further argued that there had been a fair balance between the objective pursued by the legislature and the means it had employed. They submitted in that connection that neither the parents of disabled children nor the children themselves had been deprived of all forms of assistance and that there was still statutory liability for negligence by health-care workers. Parliament had been obliged to give the need to preserve the health service priority over the hopes of a few parents for additional compensation. In view of the large number of doctors on strike, the immediate application of the new legislation had been necessary in order to limit the flight of private practitioners out of the prenatal diagnosis sector. The Government further emphasised that at first instance, after the entry into force of the legislation in issue, the applicants had obtained compensation which, while it might not have been as much as they had hoped to receive, was far from a token payment, since it amounted to EUR 180,000. That amount had equalled the compensation paid in the above-mentioned Quarez case. Consequently, although the applicants had not obtained compensation for all the heads of damage they claimed, they had received a considerable sum of money. 64. In addition, the Government contended, the level of assistance provided by way of national solidarity should not be disregarded. Measures had already been in place before the Law of 4 March 2002 and these had been supplemented by those provided for in the recently enacted Law of 11 February 2005. Thus disabled persons and their families had not suffered excessive consequences as a result of application of the Law of 4 March 2002. They had not been deprived of financial support, the difference being that this would no longer be provided by health-care workers only but also by the State. B. The Court ’ s assessment 1. Whether there was a “possession” and interference with the right to peaceful enjoyment of that “possession” 65. The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 to the Convention only in so far as the impugned decisions relate to his “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including, in certain well-defined situations, claims. For a claim to be capable of being considered an “asset” falling within the scope of Article 1 of Protocol No. 1, the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it. Where that has been done, the concept of “legitimate expectation” can come into play. 66. As regards the concept of “legitimate expectation”, one aspect of this was illustrated in the above-mentioned case of Pressos Companía Naviera S.A. and Others, which concerned claims for damages arising from accidents to shipping allegedly caused by the negligence of Belgian pilots. Under the Belgian law of tort, claims came into being as soon as damage had occurred. The Court classified these claims as “assets” attracting the protection of Article 1 of Protocol No. 1. It went on to note that, on the basis of a series of judgments of the Court of Cassation, the applicants could argue that they had a “legitimate expectation” that their claims deriving from the accidents in question would be determined in accordance with the general law of tort. 67. The Court did not expressly state in the Pressos Companía Naviera S.A. and Others case that the “legitimate expectation” was a component of, or attached to, the property right claimed. However, it was implicit in the judgment that no such expectation could come into play in the absence of an “asset” falling within the ambit of Article 1 of Protocol No. 1, which in that case was a compensation claim. The “legitimate expectation” identified in the Pressos Companía Naviera S.A. and Others case did not in itself constitute a proprietary interest; it related to the way in which the claim qualifying as an “asset” would be treated under domestic law, and in particular to the reliance on the fact that the established case-law of the national courts would continue to be applied in respect of damage which had already occurred. 68. In a line of cases the Court has found that the applicants did not have a “legitimate expectation” where it could not be said that they had a currently enforceable claim that was reasonably established. ... The Court ’ s case-law does not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there is a “legitimate expectation” protected by Article 1 of Protocol No. 1. ... The Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 35 and 48 to 52, ECHR 2004-IX). 69. Moreover, 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, are to be construed in the light of the general principle laid down in the first rule (see, among other authorities, Pressos Compania Naviera S.A. and Others, cited above, § 33). 70. In the present case it is not disputed that there was an interference with the right to peaceful enjoyment of a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention. The parties accept that, regard being had to the position regarding liability which obtained under French law at the time of the enactment of the Law of 4 March 2002, and particularly to the settled case-law of the administrative courts, which had been established by the Quarez judgment mentioned above, the applicants had suffered prejudice caused directly by negligence on the part of AP-HP and had a claim in respect of which they could legitimately expect to obtain compensation for damage, including the special burdens arising from their child ’ s disability. 71. The Law of 4 March 2002, which came into force on 7 March 2002, deprived the applicants of the possibility of obtaining compensation in respect of those special burdens by virtue of the precedent set by the Quarez judgment of 14 February 1997, whereas they had lodged their claim with the Paris Administrative Court as early as 29 March 1999, and the domestic courts, in two orders made by the judge responsible for urgent applications, on 10 May 1999 and 11 August 2001, had made interim awards which together amounted to a substantial sum, the liability of AP-HP towards them not being seriously contestable. The law complained of therefore entailed interference with the exercise of the right to compensation which could have been asserted under the domestic law applicable until then, and consequently of the applicants ’ right to peaceful enjoyment of their possessions. 72. The Court notes that in the present case, in so far as the impugned law applied to proceedings brought before 7 March 2002 which were still pending on that date, such as those brought by the applicants, the interference amounted to a deprivation of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. It must therefore determine whether the interference complained of was justified under that provision. 2. Whether the interference was justified (a) “Provided for by law” 73. It is not disputed that the interference complained of was “provided for by law”, as required by Article 1 of Protocol No. 1 to the Convention. 74. On the other hand, the parties disagreed about the legitimacy of that interference. The Court must accordingly determine whether it pursued a legitimate aim, in other words whether there was a “public interest”, and whether it complied with the principle of proportionality for the purposes of the second rule laid down in Article 1 of Protocol No. 1 to the Convention. (b) “In the public interest” 75. The Court considers that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to decide what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities, accordingly, enjoy a certain margin of appreciation. 76. Furthermore, the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature ’ s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see Pressos Compania Naviera S.A. and Others, cited above, § 37, and Broniowski v. Poland [GC], no. 31443/96, § 149, ECHR 2004- V ). 77. In the present case the Government submitted that section 1 of the Law of 4 March 2002 was prompted by general-interest considerations of three kinds: ethical concerns, and in particular the need to legislate on a fundamental choice of society; fairness; and the proper organisation of the health service (see paragraph 62 above). In that connection, the Court has no reason to doubt that the French parliament ’ s determination to put an end to a line of case-law of which it disapproved and to change the legal position on medical liability, even by making the new rules applicable to existing cases, was “in the public interest”. Whether this public-interest aim was of sufficient weight for the Court to be able to find the interference proportionate is another matter. (c) Proportionality of the interference 78. An interference with the peaceful enjoyment of possessions 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 (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others, cited above, § 38 ). 79. Compensation terms under the relevant domestic legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71; The Former King of Greece and Others v. Greece, [GC], no. 25701/94, § 89, ECHR 2000-XII; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005). 80. The Court observes that the Conseil d ’ Etat acknowledged in its Quarez judgment of 14 February 1997 that the State and public-law bodies such as AP-HP, a public health institution providing the public hospital service, were subject to the rules of ordinary law on liability for negligence. It notes that that case-law, although relatively recent, was settled and consistently applied by the administrative courts. As the Quarez judgment antedated the discovery of R. ’ s disability and above all the commencement of the applicants ’ action in the French courts, the latter could legitimately expect to rely on it to their advantage. 81. By cancelling the effects of the Quarez judgment, and those of the Court of Cassation ’ s Perruche judgment, on pending proceedings, the law complained of applied a new liability rule to facts forming the basis for an actionable claim which had occurred before its entry into force and which had given rise to legal proceedings which were still pending at that time, so that it had retrospective scope. Admittedly, the applicability of legislation to pending proceedings does not necessarily in itself upset the requisite fair balance, since the legislature is not in principle precluded in civil matters from intervening to alter the current legal position through a statute which is immediately applicable (see, mutatis mutandis, Zielinski and Pradal & Gonzalez and Others v. France [GC], nos. 24864/94 and 34165/96 to 34173/96, § 57, ECHR 1999-VII). 82. In the present case, however, section 1 of the Law of 4 March 2002 abolished purely and simply, with retrospective effect, one of the essential heads of damage, relating to very large sums of money, in respect of which the parents of children whose disabilities had not been detected before birth, like the applicants, could have claimed compensation from the hospital held to be liable. The French legislature thereby deprived the applicants of an existing “ asset ” which they previously possessed, namely an established claim to recovery of damages which they could legitimately expect to be determined in accordance with the decided case-law of the highest courts of the land. 83. The Court cannot accept the Government ’ s argument that the principle of proportionality was respected, provision having been made for an appropriate amount of compensation, which would thus constitute a satisfactory alternative, to be paid to the applicants. It does not consider that what the applicants could receive by virtue of the Law of 4 March 2002 as the sole form of compensation for the special burdens arising from the disability of their child was, or is, capable of providing them with payment of an amount reasonably related to the value of their lost asset. The applicants are admittedly entitled to benefits under the system now in force, but the amount concerned is considerably less than the sum payable under the previous liability rules and is clearly inadequate, as the Government and the legislature themselves admit, since these benefits were extended recently by new provisions introduced for that purpose by the Law of 11 February 2005. Moreover, neither the sums to be paid to the applicants under that law nor the date of its entry into force for disabled children have been definitively fixed (see paragraphs 56 to 58 above). That situation leaves the applicants, even now, in considerable uncertainty, and in any event prevents them from obtaining sufficient compensation for the damage they have already sustained since the birth of their child. Thus, both the very limited nature of the existing compensation payable by way of national solidarity and the uncertainty surrounding the compensation which might result from application of the 2005 Act rule out the conclusion that this important head of damage may be regarded as having been reasonably compensated in the period since enactment of the Law of 4 March 2002. 84. As regards the compensation awarded to the applicants by the Paris Administrative Court to date, the Court notes that it covers non-pecuniary damage and disruption to the applicants ’ lives, but not the special burdens arising from the child ’ s disability throughout his life. On this point, the Court is led to the inescapable conclusion that the amount of compensation awarded by the Paris Administrative Court was very much lower than the applicants could legitimately have expected and that, in any case, it cannot be considered to have been definitively secured, since the award was made in a first-instance judgment against which an appeal is pending. The compensation thus awarded to the applicants cannot therefore compensate for the claims now lost. 85. Lastly, the Court considers that the grounds relating to ethical considerations, equitable treatment and the proper organisation of the health service mentioned by the Conseil d ’ Etat in its opinion of 6 December 2002 and relied on by the Government could not, in the instant case, legitimise retrospective action whose result was to deprive the applicants, without sufficient compensation, of a substantial portion of the damages they had claimed, thus making them bear an individual and excessive burden. Such a radical interference with the applicants ’ rights upset the fair balance to be maintained between the demands of the general interest on the one hand and protection of the right to peaceful enjoyment of possessions on the other. 86. In so far as it concerned proceedings pending on 7 March 2002, the date of its entry into force, section 1 of the Law of 4 March 2002 therefore breached Article 1 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 87. The applicants complained that the Law of 4 March 2002, by setting up a specific liability system, had created an unjustified inequality of treatment between the parents of children whose disabilities were not detected before birth on account of negligence and the parents of children disabled on account of some other form of negligence, to whom the principles of ordinary law would continue to apply. They relied on Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. Arguments of the parties 1. The applicants 88. The applicants complained that the Law of 4 March 2002 had created an unjustified inequality of treatment between the parents of children whose disabilities had not been detected before birth on account of negligence, for whom compensation for the special burdens arising from the disability throughout the child ’ s life was a matter of national solidarity alone, and the victims of other negligent acts which had caused disability, to whom the principles of the ordinary law of tort would continue to apply. They pointed out that there was no longer any dispute as to whether they had a “possession”. The Law of 4 March 2002 had infringed their right to the peaceful enjoyment of their possessions by creating inequality of treatment between them and the other category of parents, whereas, in their submission, the two situations were essentially similar, both being concerned with compensation for prejudice resulting from a disability caused by negligence. In addition, the applicants submitted that no general ‑ interest or public-interest considerations could justify the discriminatory treatment resulting from the new legislation. 2. The Government 89. The Government submitted, as their main argument, that the two categories were not in the same situation. Where the disability had been directly caused by medical negligence, the negligence preceded the disability, was the cause of it and was therefore the original source of the prejudice sustained by the parents through the birth of a disabled child. In the applicants ’ case, the negligence had not been the direct cause of the disability, which already existed. The only prejudice it had occasioned lay in not having an abortion, or in not having the possibility of aborting. As the causal links between the medical negligence and the disability were different in the two cases, they – rightly, in the Government ’ s opinion – formed the rationale for two different sets of liability rules. It could not therefore be concluded that there had been discrimination since the situations were not the same. 90. In the alternative, the Government argued that reliance on national solidarity to provide assistance with the special burdens arising from the disability of children in R. ’ s situation was not discriminatory since, like the others, they had the benefit of extensive support measures. In addition, the Government considered that the difference in treatment between the two situations was reasonably proportionate to the legitimate objectives of the Law of 4 March 2002. B. The Court ’ s assessment 91. Regard being had to its finding of a violation concerning the applicants ’ right to the peaceful enjoyment of their possessions (see paragraph 8 6 above), the Court does not consider it necessary to examine the applicants ’ complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 92. The applicants alleged that the immediate applicability of the Law of 4 March 2002 to pending proceedings, including their case, infringed their right to a fair trial. They relied on 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 an independent and impartial tribunal established by law.” A. Arguments of the parties 1. The applicants 93. Relying on the Court ’ s case-law (particularly Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, and Zielinski and Pradal and Gonzalez and Others, cited above), the applicants alleged that the provisions of the Law of 4 March 2002 disregarded the rule that the principle of the rule of law and the notion of fair trial (in particular the principle of the equality of arms) precluded any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute, save on compelling grounds of the general interest. They argued that no compelling grounds of the general interest justified the retrospective provisions complained of. They submitted that there was no need to define the precise nature of the Law of 4 March 2002 since it did constitute retrospective legislative intervention of the type regularly criticised by the Court in its case-law. The presence of the State as a party in the dispute was not required for that case-law to apply. In any event, in the present case, the State was a party at one remove, since AP-HP was a public administrative establishment under State control. Lastly, the applicants contested the argument that national solidarity made good the prejudice for which they had not been compensated, since the existing provisions for the assistance of disabled persons were inadequate and future measures uncertain, and in any case belated and ineffective as regards compensating for the special burdens arising from their child ’ s disability. 2. The Government 94. The Government submitted that the present case was to be distinguished from those previously examined by the Court in connection with the question of “legislative validations”, and particularly from the cases of Stran Greek Refineries and Stratis Andreadis and Zielinski and Pradal & Gonzalez and Others, cited above. The law complained of was different in nature and could not be classified as “validating” legislation nor be compared to those previously criticised by the Court. The object of the Law of 4 March 2002 had not been to frustrate actions going through the courts but rather, following the debate on the Perruche judgment, to clarify liability rules which were causing difficulties. Intervening independently of any particular dispute, in a field which was appropriate for legislative intervention, and without interfering either in pre-existing contractual relations or with the proper administration of justice, Parliament had enacted a law which was not really retrospective but essentially interpretative. Moreover, the State was not in any way a party in the dispute which had given rise to the present case, nor was it defending its own interests. It followed that the legislature ’ s intervention did not amount to interference and had not been intended to influence the outcome of the dispute. Furthermore, even if it were accepted that there had been such interference, it was justified since the Law of 4 March 2002 pursued several legitimate objectives, to which the Conseil d ’ Etat had drawn attention in its opinion of 6 December 2002 (set out in paragraph 62 above). Lastly, the Government repeated their argument that there was a “reasonable relationship of proportionality” between the objective pursued by the legislature and the means it had employed. It emphasised the level of assistance provided by way of national solidarity, referring not only to the measures already taken domestically but also to those planned for the future. B. The Court ’ s assessment 95. Regard being had to the particular circumstances of the present case and to the reasoning which led it to find a violation of Article 1 of Protocol No. 1 to the Convention (see paragraphs 65 to 8 6 above), the Court does not consider it necessary to examine separately the applicants ’ complaint under Article 6 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 96. The applicants further alleged that the immediate applicability of the Law of 4 March 2002 to pending proceedings deprived them of an effective remedy, since they could no longer obtain compensation, from the person responsible, for the special burdens arising from their child ’ s disability. 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.” 97. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they 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 an “arguable” complaint under the Convention and to grant appropriate relief (see, among other authorities, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95). 98. As the Court concluded above that there has been a violation of Article 1 of Protocol No. 1 to the Convention, there is no doubt that the complaint relating to that provision is arguable for the purposes of Article 13 of the Convention. However, according to the Court ’ s case-law, Article 13 does not go so far as to guarantee a remedy allowing a Contracting State ’ s laws as such to be challenged before a national authority (see, for example, Gustafsson v. Sweden, judgment of 25 April 1996, Reports 1996 ‑ II, § 70). Consequently, the applicants ’ complaint falls foul of that principle in so far as they complained of the lack of a remedy after 7 March 2002, the date of the entry into force of section 1 of the Law of 4 March 2002 on patients ’ rights and the quality of the health service ( see, mutatis mutandis, Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002 ‑ VI ). 99. Accordingly, the Court finds no violation of Article 13 of the Convention in the present case. V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, AND OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 100. The applicants submitted that the fact that section 1 of the Law of 4 March 2002 was applied in their case while it was still pending constituted arbitrary interference by the State which infringed their right to respect for their family life. They relied on Article 8 of the Convention, the relevant parts of which provide 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 as such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Arguments of the parties 1. The applicants 101. At the hearing before the Court the applicants asserted that Article 8 of the Convention was applicable to the present case in that it proclaimed the right to a normal family life. They argued that the Law of 4 March 2002 had infringed that right and constituted interference with its exercise. But none of the conditions required for such interference to be compatible with the Convention, namely that it should be in accordance with the law, in pursuit of a legitimate aim and necessary, had been satisfied. In the first place, the legislation was neither clear nor precise, contrary to the requirements established by the Court ’ s case-law, in that the reference to national solidarity remained vague and imprecise. Secondly, and above all, the interference did not pursue a legitimate and compelling objective. In that connection, the applicants submitted, among other arguments, that the considerations linked to improving the organisation of the health service, chief among which was the concern to avoid increases in insurance premiums for doctors and health-care establishments, could not justify giving these immunity in respect of their negligent acts or omissions. Moreover, the State had not guaranteed the exercise of the applicants ’ right to a family life, since by depriving them of a remedy whereby they might seek compensation for the prejudice consisting in the special burdens arising from their child ’ s disability the legislature had blocked protection of the family ’ s interests. 102. At the hearing the applicants also invoked, for the first time, Article 14 of the Convention taken together with Article 8, in connection with the right to a normal family life. They asserted that the law complained of introduced unjustified discrimination between the parents of children born disabled as a result of negligence by a doctor who had failed to detect the disability during the mother ’ s pregnancy, who could not obtain full reparation for the consequences of such negligence, like the applicants, and the parents of disabled children who were able to impute the damage to a third party and obtain full reparation. 2. The Government 103. As their main argument, the Government contested the applicability of Article 8 of the Convention. Relying on the Court ’ s case-law (citing Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31 ), they distinguished between patrimonial rights which, by their nature, had a connection with family life (such as successions and voluntary dispositions) and those which had only an indirect link with family life, like the right to compensation for medical negligence. Accepting that Article 8 applied to the latter, and in particular to the present case, would bring within the scope of that provision any material claim a family might have, even one having nothing to do with the family structure. Even though, as the Government accepted, the question whether or not the costs arising from R. ’ s disability would be reimbursed was likely to affect the life of the applicants ’ family, it did not have any bearing on the patrimonial relations between parents and children. 104. Even if the Court were to take the view that Article 8 was applicable in the case, the Government further submitted that no interference had been established. Even if that were so, the interference would be in pursuit of a legitimate aim and necessary in a democratic society, regard being had in particular to the legitimate objectives pursued by the Law of 4 March 2002. B. The Court ’ s assessment 1. General principles 105. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely require the State to abstain from such interference: there may in addition be positive obligations inherent in effective “respect” for family life. The boundaries between the State ’ s positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see, for example, Nuutinen v. Finland, no. 32842/96, 27 June 2000, § 127, and Kutzner v. Germany, no. 46544/99, 26 February 2002, §§ 61 and 62). Furthermore, even in relation to the positive obligations flowing from the first paragraph, “in striking [the required] balance the aims mentioned in the second paragraph may be of a certain relevance” ( see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, § 41). 106. “Respect” for family life ... implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally (see Marckx, cited above, § 45). The Court has held that a State is under this type of obligation where it has found a direct and immediate link between the measures requested by an applicant, on the one hand, and his private and/or family life on the other (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 32; X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; López Ostra v. Spain, judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55; Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 227, § 58; Botta v. Italy, judgment of 24 February 1998, Reports 1998-I, § 35; and Zehnalova and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V). 107. However, since the concept of respect is not precisely defined, States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 67, and Zehnalova and Zehnal, cited above). 108. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII ). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 32, § 46, where the Court found it natural that “ the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one”). 2. Application of the above principles 109. In the present case, in so far as the complaints submitted to the Court may be distinguished from those already examined under Article 1 of Protocol No. 1 to the Convention, the applicants complained of an unjustified interference, but also, in substance, of inaction by the State, which had not set up an effective system to provide compensation for the special burdens arising from their child ’ s disability. 110. The first question to arise is whether Article 8 of the Convention is applicable, that is to say whether the measures taken by the respondent State in relation to disabled persons have anything to do with the applicants ’ right to lead a normal family life. 111. However, the Court does not consider it necessary in the present case to determine that issue since, even supposing that Article 8 of the Convention may be considered applicable, it considers that the situation complained of by the applicants did not constitute a breach of that provision. 112. It notes that section 1 of the Law of 4 March 2002 altered the existing legal position on the question of medical liability. In response to the Perruche judgment and the stormy nation-wide debate which ensued, reflecting the major differences of opinion on the question within French society, the French parliament, after consulting the various persons and interest groups concerned, decided to intervene to establish a new system of compensation for the prejudice sustained by children born with disabilities and their parents, different from the one resulting from the case-law of the administrative and civil courts. One of the main effects of the new rules established in consequence, spelled out by the Conseil d ’ Etat in its opinion of 6 December 2002, is that parents may no longer obtain compensation from the negligent party for damage in the form of the special burdens arising from their children ’ s disabilities throughout their lives. These rules were the result of comprehensive debate in Parliament, in the course of which account was taken of legal, ethical and social considerations, and concerns relating to the proper organisation of the health service and the need for fair treatment for all disabled persons. As the Conseil d ’ Etat pointed out in the opinion already mentioned, Parliament based its decision on general-interest grounds, and the validity of those grounds cannot be called into question by the Court (see paragraph 7 7 above). In doing so it was pursuing at least one of the legitimate aims set out in the second paragraph of Article 8 of the Convention, namely protection of health or morals. 113. Admittedly, being immediately applicable, the provisions in issue retrospectively deprived the applicants of an essential part of the compensation to which they could lay claim, and the Court can only repeat that finding (see paragraphs 7 8 to 8 6 above). 114. However, in deciding that the costs of caring for disabled children should be borne by reliance on national solidarity, the French legislature took the view that it was better to deal with the matter through the legislation laying down the conditions for obtaining compensation for disability than to leave to the courts the task of ruling on actions under the ordinary law of liability. Moreover, the Court notes that the previous legal dispensation, which had obtained since 1975, was thoroughly overhauled by the Law of 11 February 2005 (see paragraphs 53 to 58 above). It is certainly not for the Court to take the place of the national authorities in assessing the advisability of such a system or in determining what might be the best policy in this difficult social sphere. This is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation (see, mutatis mutandis, Powell and Rayner v. the United Kingdom, cited above, § 44). 115. Consequently, there is no serious reason for the Court to declare contrary to Article 8, in either its positive or its negative aspect, the way in which the French legislature dealt with the problem or the content of the specific measures taken to that end. It cannot reasonably be claimed that the French parliament, by deciding to reorganise the system of compensation for disability in France, overstepped the wide margin of appreciation left to it on the question or upset the fair balance that must be maintained. 116. There has accordingly been no violation of Article 8 of the Convention. 117. As regards the complaint under Article 14 of the Convention taken together with Article 8, the Court notes that it was raised for the first time before it at the hearing on 23 March 2005 (see paragraph 102 above). It is therefore not covered by the decision on admissibility of 6 July 2004 which delimits the scope of the Court ’ s jurisdiction (see, among other authorities, Göç v. Turkey [GC], no. 36590/97, § 36, ECHR 2002-V, and Assanidze v. Georgia [GC], no. 71503/01, § 162, ECHR 2004 ). It follows that this complaint falls outside the scope of the case as submitted to the Grand Chamber. VI. 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. Pecuniary and non-pecuniary damage 119. The applicants alleged that they had sustained pecuniary damage corresponding to the sums they would have received if the legal situation prior to the Law of 4 March 2002 had continued to obtain. Supplying the relevant vouchers, they claimed the following sums : a. EUR 38, 701. 32 and EUR 6, 922. 40 for the disruption to their working lives suffered by Mrs and Mr Draon respectively; b. EUR 22, 867. 35 for the loss of enjoyment of a piece of real property; c. EUR 91, 469. 40 for their non-pecuniary damage; d. EUR 45, 734. 70 for disruption to their lives; e. EUR 365, 499 for the additional costs of constructing a purpose-built house; f. EUR 42, 779 for indispensable adaptations within the home; g. EUR 5, 092, 588 for non-specialist care (assistance of a third person); h. EUR 52, 567. 47 for specific outlays remaining at their expense (non ‑ reimbursable purchases); i. EUR 35, 940. 99 for a specially equipped motor vehicle. 120. As regards in particular the sums corresponding to “special burdens” ( listed under e. to i. above ), the applicants emphasised that the law enacted on 11 February 2005 would not be immediately applicable to children and that it would not ensure compensation for the prejudice they had already sustained since R. ’ s birth. In addition, in their submission, the benefits provided for in that law were inadequate. From the amounts indicated above, the applicants deducted the sum of EUR 180, 000 awarded by the Paris Administrative Court. Their claim for pecuniary damage therefore amounted in total to EUR 5, 615, 069. 63. The applicants requested a further EUR 12, 000 as compensation for the non-pecuniary damage resulting from the violations of the Convention they complained of. 121. The Government contested all of the above claims, considering them to be unreasonable. As regards the claims under the head of pecuniary damage, they submitted in particular that the sums claimed under a. to d. above related to damage already made good by the domestic courts. As to the sums corresponding to the “special burdens” arising from R. ’ s disability (itemised under e. to i. above), these were already partly covered by the allowances paid by way of national solidarity, which were later to be supplemented by the provisions of the Law of 11 February 2005. It followed, in the Government ’ s submission, that the applicants should not be awarded a specific sum for pecuniary damage. The Government likewise considered that, in respect of the alleged non-pecuniary damage, if the Court were to find a violation that finding would constitute sufficient just satisfaction. 122. The Court considers that, in the circumstances of the case, and regard being had in particular to the state of the proceedings in the national courts, the question of the application of Article 41 is not yet ready for decision in respect of pecuniary and non-pecuniary damage. It should therefore be reserved, account being taken of the possibility of an agreement between the respondent State and the applicants ( Rule 75 §§ 1 and 4). B. Costs and expenses 123. With supporting vouchers, the applicants claimed EUR 15, 244 for costs and expenses incurred before the Court. 124. The Government acknowledged that the applicants had used the services of a lawyer and that the case was of a certain complexity. They left assessment of the amount to be awarded under this head to the Court ’ s discretion, while submitting that it should not exceed EUR 7, 500. 125. The Court notes that the applicants supported their claims by supplying a bill of costs containing an itemised breakdown of work done. Considering that the amounts claimed are not excessive in the light of the nature of the dispute, which was incontestably of a certain complexity, the Court allows the applicants ’ claims in full and awards them the sum of EUR 15, 244, including all taxes. C. Default interest 126. 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 law in question was in violation of Article 1 (protection of property) of Protocol No. 1 to the Convention concerning proceedings which were pending when the law came into force. |
1,045 | Military intervention not exercising effective control | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Turkish Criminal Code 49. The Criminal Code makes it a criminal offence (a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); (b) to subject an individual to torture or ill-treatment (Articles 243 and 245); (c) to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) or murder (Article 450); 50. If the suspected authors of these criminal acts are military personnel, they may also be prosecuted for the above-mentioned crimes. 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). B. Relevant International Legal Materials 51. A description of relevant international legal materials can be found in Banković and Others v. Belgium and 16 other Contracting States (dec.) [GC], application no. 52207/99, §§ 14-27, ECHR 2001-XII. THE LAW I. PRELIMINARY ISSUE: THE GOVERNMENT'S PRELIMINARY OBJECTION CONCERNING JURISDICTION AND THE APPLICANTS'ESTOPPEL ARGUMENTS A. Parties'submissions 1. The Government 52. In their post-admissibility observations dated 9 July 2002, the Government submitted that the need had arisen to examine the issue of “jurisdiction” in the instant case, having regard to the Court's inadmissibility decision of 12 December 2001 in the case of Banković and Others cited above. They contended that in its Banković and Others decision the Court had departed from its previous case-law on the scope of interpretation of Article 1 of the Convention. Since the jurisdiction issue in the applicants'case had been left unresolved in the admissibility decision, which pre-dated the Banković and Others decision, the Court should address itself in the first place to the compatibility ratione loci of the application. 2. The applicants 53. The applicants replied that the Court in the Banković and Others case had merely refined and applied existing case-law on Article 1 to the facts of the Banković and Others case. In any event, it had already ruled on the admissibility of their complaints. On that account, the Government should be considered estopped from raising a new objection to admissibility at this late stage of the proceedings. The applicants, on the other hand, had addressed the issue of jurisdiction squarely both in their initial application and in their pre-admissibility pleadings. The Government never sought to rebut their claim that Turkey's jurisdiction was engaged on the facts of the case and confined themselves to challenging the admissibility of the application on the grounds set out in Article 35 § 1 of the Convention. To allow the Government to re-open admissibility issues at this stage would fundamentally offend against the principles of certainty and finality and would make a mockery of the principle of “equality of arms”. 54. Furthermore, both the Government and the Court had already accepted jurisdiction in the present case. The applicants reasoned that, in their submissions to the Court in the Banković and Others case, the respondent Governments, including Turkey, expressly agreed with the Court's admissibility decision in Issa, describing it as “ ... a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil” ( Banković and Others, cited above, § 37). Thus, the Turkish Government can be said to have impliedly accepted the force of that argument and its application to the circumstances of the instant case. Likewise, the Court effectively accepted jurisdiction when it ruled on the issue of domestic remedies. For the applicants, it was inconceivable that the Court had not supposed Turkey's jurisdiction when ruling on admissibility. Its detailed examination of the general and political context as well as its cross-references to other judgments against Turkey is only intelligible on the basis that Turkey came within the terms of Article 1. B. The Court's assessment 55. The Government did not explicitly raise the issue of jurisdiction prior to the admissibility decision in the instant case. However, they have at all times denied the factual basis of the applicants'allegations and, by implication, the applicants'specific and crucial contention that the deceased shepherds were under the control and authority of Turkish armed forces operating in northern Iraq at the relevant time and were, accordingly, within the jurisdiction of Turkey. In the Court's opinion, and notwithstanding the requirements of Rule 55 of the Rules of Court, the Government cannot be considered precluded from raising the jurisdiction issue at this juncture. That issue is inextricably linked to the facts underlying the allegations. As such, it must be taken to have been implicitly reserved for the merits stage. It would add that it cannot accept the applicants'arguments that the Court had accepted that Turkey had jurisdiction when it ruled on the admissibility of the application. It refers in this connection to the fact that the Grand Chamber in its Banković and Others decision pointed out that “in any event the merits of [the Issa case ] remain to be decided.” ( ibid. § 81). In conclusion, the question of jurisdiction must be seen as a live issue in the case before it and must therefore be examined. II. WHETHER THE APPLICANTS'RELATIVES CAME WITHIN THE JURISDICTION OF TURKEY A. Arguments submitted to the Court 1. The Government 56. The Banković and Others decision demonstrated that the Court's recognition of the exercise of acts of extra - territorial jurisdiction by a Contracting State was exceptional since such acts were subject to the sovereignty of another State. That decision also confirmed that the Convention was a treaty operating in an essentially regional context and in the legal space ( espace juridique ) of Contracting States and that jurisdiction would only be established when the territory in question was one that would normally be covered by the Convention. 57. Iraq was an independent and sovereign State which exercised effective jurisdiction over its national territory. It was neither a member of the Council of Europe nor a signatory to the Convention. Accordingly, the acts imputed to Turkey could not fall under the Convention protection system and/or within the jurisdiction of a Contracting State. The applicants could not rely on the argument that, in the event of a ruling by the Court that it was not competent to decide the case, a vacuum or lacuna in the system of human rights system would thereby result. 58. As they had done in their submissions on the admissibility of the application, the Government confirmed that Turkish troops had conducted an operation in northern Iraq between 19 March and 16 April 1995. However, no Turkish soldiers had been present in the area indicated by the applicants. During this military operation Turkish troops had advanced to Mount Medina. However, the scene of the impugned incident was ten kilometres to the south of Mount Medina, and thus beyond the zone of operations. The records of the armed forces showed that no Turkish soldiers were in the area indicated by the applicants. For the Government, the mere presence of Turkish armed forces for a limited time and for a limited purpose in northern Iraq was not synonymous with “jurisdiction”. Turkey did not exercise effective control of any part of Iraq and it had to be concluded that Turkey could not be held responsible for the acts imputed to it in the instant application. 59. The Government further pointed out that no complaint had ever been made to any officer of the Turkish armed forces operating in the Mount Medina region at the relevant time, and no investigation could therefore be conducted into the incident of which Turkey was accused. As regards the video recording of statements made by the KDP Chief of the Amedi region, Mr Shookri Newayi, during a press conference held in Dohouk, the Government observed that the KDP office in Ankara had been contacted with a view to verifying the reliability of the statements made by Mr Nerwayi and to ascertaining the outcome of the investigations carried out by the local authorities. The KDP office replied that Mr Nerwayi was the contact person for the KDP with the Turkish army, that no accusations had been made against the Turkish army and that no investigation had been conducted into the incident (see paragraph 46 above). The KDP's letter also stated that at the relevant time the PKK had been active in the region and that there had been many confrontations between the KDP and the PKK. This information supported the views expressed in news reports at the time of the incident that the killing could have been carried out by members of the PKK operating in the region. 60. Finally, the Government stressed that individuals who suffered pecuniary or non-pecuniary damage as result of misconduct by members of the Turkish armed forces received compensation on submission of their complaints to the competent authorities. They referred in this connection to a newspaper article which reported that the Turkish Government had paid compensation to the relatives of thirty-eight persons who had lost their lives during an aerial campaign of the Turkish army in northern Iraq (see paragraph 47). 61. In sum, the Government concluded that, in view of the circumstances of the present case and having regard to the Court's interpretation of the notion of “jurisdiction” in the Banković and Others decision, Turkey's jurisdiction did not extend to northern Iraq for alleged violations of the Convention and its protocols and that Convention responsibility for the incident in the present case could not therefore be imputed to Turkey. 2. The applicants 62. The applicants claimed that the jurisdictional position of the applicants remained unaffected by the Banković and Others decision. With reference to the Convention institutions'jurisprudence and legal commentaries on the issue of jurisdiction, the applicants submitted that the victims of the atrocity were within the jurisdiction of the respondent State at the material time (see, Loizidou v. Turkey ( preliminary objections ), judgment of 23 March 1995, Series A no. 310, p. 23, § 62; Loizidou v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2 234, § 52; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001 -IV; Banković and Others, cited above, § § 54 and 70; Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, p. 29, § 91; Oppenheim's International Law, 9 th Edition 1992 (Jennings and Watts), Vol. 1, § § 136 and 137; Brownlie, Principles of International Law, 4 th Edition 1990, p. 2 98, 311; and Byers, Custom, Power and the Power of Rules, Cambridge University Press, 1999, p. 53 ). 63. The applicants maintained that Turkey's ground operations in northern Iraq were sufficient to constitute “effective overall control” ( within the meaning of the Loizidou judgment ) of the area where the breaches of their relatives'human rights occurred. In their official statements on the conduct of military operations in northern Iraq at the relevant time, the Turkish authorities accepted that the area was under the authority of the Turkish State, and hence within its jurisdiction (see Government Statement. Subject: Military Operation in Northern Iraq. Permanent Mission of Turkey to the United Nations Office of the Press Counsellor, 20 March 1995 ). During those military operations, the Turkish Government deployed in excess of 35,000 ground troops, backed up by tanks, helicopters and F- 16 fighter aircraft ( Turkey: Anti ‑ Kurdish Offensive, Keesing's Record of World Events, News Digest for March 1995). Given the degree of control enjoyed by the Turkish armed forces of the area, the Turkish Government had de facto authority over northern Iraq and its inhabitants, as opposed to de jure sovereignty. The circumstances of the applicants'case were different from those in the Banković case since the deceased shepherds had been deliberately targeted, murdered and mutilated by Turkish armed forces. In their opinion, the fact that the decision ‑ making process that led to the military operation in northern Iraq took place in Turkey lent further weight to their submission that Turkey exercised jurisdiction at the relevant time. 64. The applicants also stressed that the shepherds fell within the protected persons category defined in Article 4 of Fourth Geneva Convention of 1949, namely “those who at any given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals ”. Accordingly, the seven Iraqi shepherds were brought within the jurisdiction of the respondent State by virtue of the de minimis protection afforded by the Geneva Conventions. The fact that under international law the victims were clearly within the jurisdiction of Turkey reinforced their submission that the requirements for the applicability of Article 1 of the Convention were satisfied in this case. B. The Court's assessment 1. General principles 65. 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.” 66. It follows from Article 1 that Contracting States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. 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 - ... ). 67. The established case-law in this area indicates that the concept of “jurisdiction” for the purposes of Article 1 of the Convention must be considered to reflect the term's meaning in public international law (see Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, 14 May 2002; Banković and Others, cited above, §§ 59-61, and Assanidzé v. Georgia, [GC], no. 71503/01, § 137, ECHR 2004 -...). From the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see Banković and Others, cited above, § 59 ), but also that jurisdiction is presumed to be exercised normally throughout the State's territory. 68. However, the concept of “jurisdiction ” within the meaning of Article 1 of the Convention is not necessarily restricted to the national territory of the High Contracting Parties (see Loizidou v. Turkey, cited above, pp. 2235-2236 § 52). In exceptional circumstances the acts of Contracting States performed outside their territory or which produce effects there (“extra-territorial act”) may amount to exercise by them of their jurisdiction within the meaning of Article 1 of the Convention. 69. According to the relevant principles of international law, a State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration ( ibid. § 52 ). 70. It is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory, since even overall control of the area may engage the responsibility of the Contracting Party concerned ( ibid., pp. 2235-2236, § 56). 71. Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully - in the latter State (see, mutatis mutandis, M. v. Denmark, application no. 17392/90, Commission decision of 14 October 1992, DR 73, p. 193; Illich Sanchez Ramirez v. France, application no. 2878 0/95, Commission decision of 24 June 1996, DR 86, p. 155; Coard et al. v. the United States, the Inter ‑ American Commission of Human Rights decision of 29 September 1999, Report No. 109/99, case No. 10.951, §§ 37, 39, 41 and 43; and the views adopted by the Human Rights Committee on 29 July 1981 in the cases of Lopez Burgos v. Uruguay and Celiberti de Casariego v. Uruguay, nos. 52/1979 and 56/1979, at §§ 12.3 and 10.3 respectively ). Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory ( ibid .). 2. Application of the above principles 72. In the light of the above principles the Court must ascertain whether the applicants'relatives were under the authority and /or effective control, and therefore within the jurisdiction, of the respondent State as a result of the latter's extra ‑ territorial acts. 73. In this connection, the Court notes that it is undisputed between the parties that the Turkish armed forces carried out military operations in northern Iraq over a six - week period between 19 March and 16 April 1995 (see paragraphs 58 and 63 above). It transpires from the parties'submissions and the documentary evidence contained in the case-file that the cross-border operation conducted at that time was extensive and was aimed at pursuing and eliminating terrorists who were seeking shelter in northern Iraq (see paragraphs 36, 43, 45, 58 and 63 ). 74. The Court does not exclude the possibility that, as a consequence of this military action, the respondent State could be considered to have exercised, temporarily, effective overall control of a particular portion of the territory of northern Iraq. Accordingly, if there is a sufficient factual basis for holding that, at the relevant time, the victims were within that specific area, it would follow logically that they were within the jurisdiction of Turkey (and not that of Iraq, which is not a Contracting State and clearly does not fall within the legal space ( espace juridique ) of the Contracting States (see the above-cited Banković decision, § 80). 75. However, notwithstanding the large number of troops involved in the aforementioned military operations, it does not appear that Turkey exercised effective overall control of the entire area of northern Iraq. This situation is therefore in contrast to the one which obtained in northern Cyprus in the Loizidou v. Turkey and Cyprus v. Turkey cases (both cited above). In the latter cases, the Court found that the respondent Government's armed forces totalled more than 30,000 personnel (which is, admittedly, no less than the number alleged by the applicants in the instant case - see § 63 above – but with the difference that the troops in northern Cyprus were present over a very much longer period of time) and were stationed throughout the whole of the territory of northern Cyprus. Moreover, that area was constantly patrolled and had check points on all main lines of communication between the northern and southern parts of the island. 76. The essential question to be examined in the instant case is whether at the relevant time Turkish troops conducted operations in the area where the killings took place. The fate of the applicants'complaints in respect of the killing of their relatives depends on the prior establishment of that premise. The Government have vigorously denied that their troops were active in or around Azadi village in the Spna area (see paragraphs 25 and 58 above). The reasonableness of that assertion must be tested in the light of the documentary and other evidence which the parties have submitted to the Court, having regard to the standard of proof which it habitually employs when ascertaining whether there is a basis in fact for an allegation of unlawful killing, namely proof “beyond reasonable doubt” ( Orhan v. Turkey, no. 25656/94, § 264, 18 June 2002; Tepe v. Turkey, no. 27244/95, § 125, 9 May 2003; and İpek v. Turkey, no. 25760/94, § 109, ECHR 2004 ‑ ... (extracts) ), it being understood that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 77. The Court notes that the applicants have provided written statements describing the alleged course of events leading to the arrest and killing of their relatives. While the applicants were all unequivocal in their statements that the alleged acts were perpetrated by Turkish soldiers, they have not given any particulars as to the identity of the commander or of the regiment involved in the impugned acts (see paragraphs 26-33 above). Nor have they given a detailed description of the soldiers'uniforms. It is to be noted in this connection that there is no independent eye-witness account of the presence of Turkish soldiers in the area in question or of the detention of the shepherds. 78. As regards the statements made by Mr Shookri Newayi and other KDP officials during a press conference held in Dohouk, the Court considers that no weight should be given to their assertions, having regard to the facts that the content of the letter from Mr Safeen Dizayee, who is the head of the KDP office in Ankara, contradicts them and that, in any event, they lack precise and sufficient information about the characteristics of the Turkish troops alleged to have been involved in the events in question (see paragraphs 33, 38-40 and 43 above). 79. Furthermore, the Court is unable to determine, on the basis of the findings contained in the post-mortem reports and the video recording showing the bullet shells marked “MKE” allegedly removed from the shepherds'corpses, whether the deaths were caused by gunfire discharged by Turkish troops (see paragraphs 34, 35, 42 and 48 above). It notes that the post ‑ mortem reports submitted by the applicants do not mention that bullet shells with the marking “MKE” had been recovered from the corpses of the shepherds (see paragraphs 34 and 35 above). Accordingly, the Court cannot attach any decisive importance to the video footage since this is untested and at most circumstantial evidence. In this connection, the Court cannot overlook either the fact that the area where the applicants'relatives were killed was the scene of fierce fighting between PKK militants and KDP peshmergas at the relevant time (see paragraphs 41 and 46 above ). Moreover, although news reports and official records confirm the conduct of cross-border operations and the presence of the Turkish army in northern Iraq at the material time, these materials do not make it possible to conclude with any degree of certainty that Turkish troops went as far as the Azadi village in the Spna area (see paragraphs 36 and 43 ‑ 45 above). 80. Finally, the Court has also had regard to the applicants'allegations that they appealed to Turkish army officers to secure the release of their relatives and, subsequent to the discovery of the bodies, for an investigation to be carried out by the Turkish authorities into the killings. However, given the failure of the applicants to provide any cogent and convincing evidence capable of rebutting the Government's contention that no such complaint was ever made to Turkish army officers in northern Iraq and having regard to the KDP's letter confirming the Government's stance (see paragraph 46 above), the Court cannot but conclude that these allegations are unsubstantiated. 81. On the basis of all the material in its possession, the Court considers that it has not been established to the required standard of proof that the Turkish armed forces conducted operations in the area in question, and, more precisely, in the hills above the village of Azadi where, according to the applicants'statements, the victims were at that time. 3. The Court's conclusion 82. In the light of the above, the Court is not satisfied that the applicants'relatives were within the “ jurisdiction ” of the respondent State for the purposes of Article 1 of the Convention. This finding makes it unnecessary to examine the applicants'substantive complaints under Articles 2, 3, 5, 8, 13, 14 and 18 of the Convention. | The Court recalled that the concept of “jurisdiction” under the Convention was not restricted to the national territory of the Contracting Parties. In exceptional circumstances the acts of Contracting States performed outside their territory, or which produced effects there, might amount to exercise by them of their jurisdiction. Accountability in such situations stemmed from the fact that Article 1 (obligation to respect human rights) of the Convention could not be interpreted so as to allow a Contracting State to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory. However, the Court was unable to determine, on the basis of the evidence available to it, whether the applicants’ relatives had been killed by gunfire coming from Turkish troops. The Court was accordingly not satisfied that the applicants’ relatives had been within Turkish jurisdiction for the purposes of Article 1 of the Convention. |
475 | Online hate speech | II. RELEVANT DOMESTIC LAW AND PRACTICE 33. The Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides as follows. Article 17 “ No one ’ s honour or good name shall be defamed. ” Article 19 “ 1. Everyone has the right to free self-realisation. 2. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. ” Article 45 “ 1. Everyone has the right freely to disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice. 2. There is to be no censorship. ” 34. Section 138 of the Civil Code (General Principles) Act ( Tsiviilseadustiku üldosa seadus ) provides that rights are to be exercised and obligations performed in good faith. A right must not be exercised in an unlawful manner or with the aim of causing damage to another person. 35. Subsection 2 of section 134 of the Obligations Act ( Võlaõigusseadus ) provides: “ In the case of an obligation to compensate for damage arising from ... a breach of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the breach, in particular by physical or emotional distress. ” 36. Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable ( süüdi ) of causing the damage or is liable for causing the damage pursuant to the law. 37. Section 1045 of the Obligations Act provides that the causing of damage is unlawful if, inter alia, it results from a breach of a personality right of the victim. 38. The Obligations Act further provides. Section 1046 – Unlawfulness of damage to personality rights “ (1) Injuring a person ’ s honour, inter alia, by passing an undue value judgment, unjustified use of a person ’ s name or image, or breaching the inviolability of a person ’ s private life or another personality right, is unlawful unless otherwise provided by law. In establishing such unlawfulness, the type of the breach, the reason and motive for the breach and the gravity of the breach relative to the aim pursued thereby shall be taken into consideration. (2) The breach of a personality right is not unlawful if the breach is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of a comparative assessment of the different legal rights and interests protected by law. ” Section 1047 – Unlawfulness of disclosure of incorrect information “ (1) A breach of personality rights or interference with the economic or professional activities of a person by way of disclosure [ avaldamine ] of incorrect information, or by way of incomplete or misleading disclosure of information concerning the person or the person ’ s activities, is unlawful unless the person who discloses such information proves that, at the time of such disclosure, he or she was not aware and was not required to be aware that such information was incorrect or incomplete. (2) Disclosure of defamatory matters concerning a person, or matters which may adversely affect a person ’ s economic situation, is deemed to be unlawful unless the person who discloses such matters proves that they are true. (3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential breach. (4) In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not. ” Section 1050 – Culpability [ süü ] as basis for liability “ (1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable [ süüdi ] of causing the damage. (2) The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration in the assessment of the culpability [ süü ] of the person for the purposes of this Chapter. (3) If several persons are liable for compensation for damage and, pursuant to law, one or more of them are liable for compensation for unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for compensation for the damage shall be taken into consideration in apportioning among them the obligation to compensate for the damage. ” Section 1055 – Prohibition on damaging actions “ (1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand the cessation of the behaviour causing the damage or of the threats of such behaviour. In the event of bodily injury, damage to health or a breach of the inviolability of personal life or of any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), that the use of housing or communications be regulated, or that other similar measures be applied. (2) The right to demand the cessation of behaviour causing damage as specified in subsection (1) of this section shall not apply if it is reasonable to expect that such behaviour can be tolerated in conditions of human coexistence or in view of a significant public interest. In such cases, the victim shall have the right to make a claim for compensation for damage caused unlawfully. ... ” 39. The Information Society Services Act ( Infoühiskonna teenuse seadus ) provides as follows. Section 8 – Restricted liability in the case of mere transmission of information and provision of access to a public data communications network “ (1) Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider shall not be liable for the information transmitted, on condition that the provider: 1. does not initiate the transmission; 2. does not select the receiver of the transmission; and 3. does not select or modify the information contained in the transmission. (2) The acts of transmission and of provision of access within the meaning of subsection 1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. ” Section 9 – Restricted liability in the case of temporary storage of information in cache memory “ (1) Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service at their request, on condition that: 1. the provider does not modify the information; 2. the provider complies with conditions on access to the information; 3. the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry; 4. the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information; 5. the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a State supervisory authority has ordered such removal. ” Section 10 – Restricted liability in the case of provision of an information storage service “ (1) Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that: 1. the provider does not have actual knowledge of the content of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; 2. the provider, upon obtaining knowledge or awareness of the facts specified in paragraph 1 of this subsection, acts expeditiously to remove or to disable access to the information. (2) Subsection 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider. ” Section 11 – No obligation to monitor “ (1) A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged actively to seek information or circumstances indicating illegal activity. (2) The provisions of subsection 1 of this section shall not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider. (3) Service providers are required promptly to inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements. ... ” 40. Articles 244 et seq. of the Code of Civil Procedure ( Tsiviilkohtumenetluse seadustik ) provide for pre-trial taking of evidence ( eeltõendamismenetlus ) – a procedure in which evidence may be taken before the judicial proceedings have even been initiated if it can be presumed that evidence might be lost or that using the evidence afterwards might involve difficulties. 41. In a judgment of 21 December 2005 (case no. 3-2-1-95-05), the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure ( avaldamine ) meant disclosure of information to third parties. A person who transmitted information to a media publisher ( meediaväljaanne ) could be considered a discloser ( avaldaja ) even if he or she was not the publisher of the article ( ajaleheartikli avaldaja ) in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no. 3 ‑ 2 ‑ 1-67-10). 42. In a number of domestic cases, actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (Supreme Court judgment of 7 May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (Supreme Court judgment of 1 December 1997 in case no. 3 ‑ 2 ‑ 1-99-97), and solely against a publisher of a newspaper (Supreme Court judgments of 30 October 1997 in case no. 3-2-1-123-97, and 10 October 2007 in case no. 3-2-1-53-07). 43. Following the Supreme Court ’ s judgment of 10 June 2009 in the case giving rise to the present case before the Court (case no. 3-2-1-43-09), several lower courts have resolved the issue of liability in respect of comments relating to online news articles in a similar manner. Thus, in a judgment of 21 February 2012, the Tallinn Court of Appeal (case no. 2 ‑ 08 ‑ 76058) upheld a lower court ’ s judgment concerning a defamed person ’ s claim against a publisher of a newspaper. The publisher was found liable for defamatory online comments posted by readers in the newspaper ’ s online comments section. The courts found that the publisher was a content service provider. They rejected the publisher ’ s request for a preliminary ruling from the Court of Justice of the European Union (CJEU), finding that it was evident that the defendant did not satisfy the criteria for a passive service provider as previously interpreted by the CJEU and the Supreme Court, and that the relevant rules were sufficiently clear. Therefore, no new directions from the CJEU were needed. The courts also noted that, pursuant to the judgment of 23 March 2010 of the CJEU (Joined Cases C ‑ 236/08 to C ‑ 238/08, Google France SARL and Google Inc. [2010] ECR I ‑ 2417), it was for the national courts to assess whether the role played by a service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. The courts considered that this was not the case in the matter before them. As the publisher had already deleted the defamatory comments by the time of the delivery of the judgment, no ruling was made on that issue; the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed. A similar judgment was handed down by the Tallinn Court of Appeal on 27 June 2013 (case no. 2-10-46710). In that case as well, an Internet news portal was held liable for defamatory comments posted by readers and the plaintiff ’ s claim in respect of non-pecuniary damage was dismissed. III. RELEVANT INTERNATIONAL INSTRUMENTS A. Council of Europe documents 44. On 28 May 2003, at the 840th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted a declaration on freedom of communication on the Internet. The relevant parts of the declaration read as follows. “ The member states of the Council of Europe, ... Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties; Recalling in this respect 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); Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors; Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts; ... Declare that they seek to abide by the following principles in the field of communication on the Internet: Principle 1: Content rules for the Internet Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery. ... Principle 3: Absence of prior state control Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries. Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality. ... Principle 6: Limited liability of service providers for Internet content Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity. Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet. In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information. When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information. In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law. 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. ” 45. In its Recommendation CM/ Rec( 2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies. 46. Recommendation CM/ Rec( 2011)7 of the Committee of Ministers to member states on a new notion of media (adopted on 21 September 2011) reads as follows. “ ... The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states: – adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents; – review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people ’ s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship; – apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society; ... ” The Appendix to the Recommendation states as follows, in so far as relevant. “ 7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe. ... 30. Editorial control can be evidenced by the actors ’ own policy decisions on the content to make available or to promote, and on the manner in which to present or arrange it. Legacy media sometimes publicise explicitly written editorial policies, but they can also be found in internal instructions or criteria for selecting or processing (for example verifying or validating) content. In the new communications environments, editorial policies can be embedded in mission statements or in terms and conditions of use (which may contain very detailed provisions on content), or may be expressed informally as a commitment to certain principles (for example netiquette, motto). ... 32. Editorial process can involve users (for example peer review and take down requests) with ultimate decisions taken according to an internally defined process and having regard to specified criteria (reactive moderation). New media often resort to ex post moderation (often referred to as post-moderation) in respect of user generated content, which may at first sight be imperceptible. Editorial processes may also be automated (for example in the case of algorithms ex ante selecting content or comparing content with copyrighted material). ... 35. Again, it should be noted that different levels of editorial control go along with different levels of editorial responsibility. Different levels of editorial control or editorial modalities (for example ex ante as compared with ex post moderation) call for differentiated responses and will almost certainly permit best to graduate the response. 36. Consequently, a provider of an intermediary or auxiliary service which contributes to the functioning or accessing of a media but does not – or should not – itself exercise editorial control, and therefore has limited or no editorial responsibility, should not be considered to be media. However, their action may be relevant in a media context. Nonetheless, action taken by providers of intermediary or auxiliary services as a result of legal obligations (for example take down of content in response to a judicial order) should not be considered as editorial control in the sense of the above. ... 63. The importance of the role of intermediaries should be underlined. They offer alternative and complementary means or channels for the dissemination of media content, thus broadening outreach and enhancing effectiveness in media ’ s achievements of its purposes and objectives. In a competitive intermediaries and auxiliaries market, they may significantly reduce the risk of interference by authorities. However, given the degree to which media have to rely on them in the new ecosystem, there is also a risk of censorship operated through intermediaries and auxiliaries. Certain situations may also pose a risk of private censorship (by intermediaries and auxiliaries in respect of media to which they provide services or content they carry). ” 47. On 16 April 2014 Recommendation CM/ Rec( 2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows. Freedom of expression and information “ You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means: 1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy; 2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight; ... 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. ” B. Other international documents 48. In his report of 16 May 2011 (A/HRC/17/27) to the Human Rights Council, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following. “ 25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life). ... 27. In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals ’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. ... ... 43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf ... ... 74. Intermediaries play a fundamental role in enabling Internet users to enjoy their right to freedom of expression and access to information. Given their unprecedented influence over how and what is circulated on the Internet, States have increasingly sought to exert control over them and to hold them legally liable for failing to prevent access to content deemed to be illegal. ” 49. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following: “ No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content. ” IV. RELEVANT EUROPEAN UNION AND COMPARATIVE LAW MATERIAL A. European Union instruments and case-law 1. Directive 2000/31/EC 50. The relevant parts of 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) provide 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. ... (42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. (43) A service provider can benefit from the exemptions for ‘ mere conduit ’ and for ‘ caching ’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘ mere conduit ’ or ‘ caching ’ and as a result cannot benefit from the liability exemptions established for these activities. (45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it. (46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States ’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. (48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities. ... Article 1 Objective and scope 1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. ... Article 2 Definitions For the purpose of this Directive, the following terms shall bear the following meanings: (a) ‘ information society services ’ : services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; (b) ‘ service provider ’ : any natural or legal person providing an information society service; (c) ‘ established service provider ’ : a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider; ... Section 4: Liability of intermediary service providers Article 12 ‘ Mere conduit ’ 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. 2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 13 ‘ Caching ’ 1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information ’ s onward transmission to other recipients of the service upon their request, on condition that: (a) the provider does not modify the information; (b) the provider complies with conditions on access to the information; (c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry; (d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and (e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement. 2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 14 Hosting 1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States ’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. Article 15 No general obligation to monitor 1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. 2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements. ” 2. Directive 98/34/EC as amended by Directive 98/48/EC 51. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC, provides as follows: Article 1 “ For the purposes of this Directive, the following meanings shall apply : ... 2. ‘ service ’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: – ‘ at a distance ’ means that the service is provided without the parties being simultaneously present, – ‘ by electronic means ’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, – ‘ at the individual request of a recipient of services ’ means that the service is provided through the transmission of data on individual request. An indicative list of services not covered by this definition is set out in Annex V. This Directive shall not apply to: – radio broadcasting services, – television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC. ” 3. Case-law of the CJEU 52. In a judgment of 23 March 2010 (Joined Cases C ‑ 236/08 to C ‑ 238/08 Google France SARL and Google Inc. ), the CJEU considered that, in order to establish whether the liability of a referencing service provider could be limited under Article 14 of the Directive on electronic commerce, it was necessary to examine whether the role played by that service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. Article 14 of the Directive on electronic commerce had to be interpreted as meaning that the rule laid down therein applied to an Internet referencing service provider in the event that that service provider had not played an active role of such a kind as to give it knowledge of or control over the data stored. If it had not played such a role, that service provider could not be held liable for the data which it had stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser ’ s activities, it had failed to act expeditiously to remove or to disable access to the data concerned. 53. In a judgment of 12 July 2011 (Case C ‑ 324/09, L ’ Oréal SA and Others ), the CJEU ruled that Article 14 § 1 of the Directive on electronic commerce was to be interpreted as applying to the operator of an online marketplace where that operator had not played an active role allowing it to have knowledge of or control over the data stored. The operator played such a role when it provided assistance which entailed, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace had not played such an active role and the service provided fell, as a consequence, within the scope of Article 14 § 1 of the Directive on electronic commerce, the operator none the less could not, in a case which could result in an order to pay damages, rely on the exemption from liability provided for under that Article if it had been aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question had been unlawful and, in the event of it being so aware, had failed to act expeditiously in accordance with Article 14 § 1 (b) of the Directive on electronic commerce. 54. In a judgment of 24 November 2011 (Case C-70/10, Scarlet Extended SA ), the CJEU ruled that an injunction could not be made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, which applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying on that provider ’ s network the movement of electronic files containing a musical, cinematographic or audio - visual work in respect of which the applicant claimed to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which would infringe copyright. 55. In a judgment of 16 February 2012 (Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA ( SABAM ) ) the CJEU held that the Directive on electronic commerce and Directives 2000/31/EC, 2001/29/EC and 2004/48/EC precluded a national court from issuing an injunction against a hosting service provider requiring it to install a system for filtering information stored on its servers by its service users, which applied indiscriminately to all those users, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying electronic files containing musical, cinematographic or audio - visual work in respect of which the applicant for the injunction claimed to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright. 56. In a judgment of 13 May 2014 (Case C-131/12, Google Spain SL and Google Inc. ), the CJEU was called upon to interpret 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. It found that the activity of an Internet search engine was to be classified as “ processing of personal data ” within the meaning of Directive 95/46/EC and held that such processing of personal data, carried out by the operator of a search engine, was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when the search by means of that engine was carried out on the basis of an individual ’ s name, since that processing enabled any Internet user to obtain through the list of results a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. Furthermore, the effect of the interference with the rights of the data subject was heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. The CJEU considered that a fair balance should be sought between the legitimate interest of Internet users in having access to the information and the data subject ’ s fundamental rights. The data subject ’ s fundamental rights, as a general rule, overrode the interest of Internet users, but that balance might, however, depend on the nature of the information in question and its sensitivity for the data subject ’ s private life and on the interest of the public in having that information. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed following a search made on the basis of a person ’ s name links to web pages, published by third parties and containing information relating to that person, even when its publication in itself on the web pages in question was lawful. That was so in particular where the data appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they had been processed and in the light of the time that had elapsed. 57. In a judgment of 11 September 2014 (Case C-291/13, Sotiris Papasavvas ), the CJEU found that, since a newspaper publishing company which posted an online version of a newspaper on its website had, in principle, knowledge of the information which it posted and exercised control over that information, it could not be considered to be an “ intermediary service provider ” within the meaning of Articles 12 to 14 of Directive 2000/31 /EC, whether or not access to that website was free of charge. Thus, it held that the limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 /EC did not apply to the case of a newspaper publishing company which operated a website on which the online version of a newspaper was posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on the website, since it had knowledge of the information posted and exercised control over that information, whether or not access to the website was free of charge. B. Comparative law material 58. From the information available to the Court, it would appear that in a number of the member States of the Council of Europe – which are also member States of the European Union – the Directive on electronic commerce, as transposed into national law, constitutes a primary source of law in the area in question. It would also appear that the greater the involvement of the operator in the third-party content before online publication – whether through prior censoring, editing, selection of recipients, requesting comments on a predefined subject or the adoption of content as the operator ’ s own – the greater the likelihood that the operator will be held liable for that content. Some countries have enacted certain further regulations specifically concerning the take-down procedures relating to allegedly unlawful content on the Internet, and provisions concerning distribution of liability in this context. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 59. The applicant company complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided for 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. ” 60. The Government contested that argument. A. The Chamber judgment 61. In its judgment of 10 October 2013, the Chamber noted at the outset that the parties ’ views diverged as to the applicant company ’ s role in the present case. According to the Government, the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company was of the opinion that its freedom to impart information created and published by third parties was at stake, and that the applicant company itself was not a publisher of the third-party comments. The Chamber did not proceed to determine the exact role to be attributed to the applicant company ’ s activities and noted that it was not, in substance, in dispute between the parties that the domestic courts ’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention. 62. As regards the lawfulness of the interference, the Chamber rejected the applicant company ’ s argument that the interference with its freedom of expression was not “ prescribed by law ”. The Chamber observed that the domestic courts had found that the applicant company ’ s activities did not fall within the scope of the Directive on electronic commerce and the Information Society Services Act. It considered that it was not its task to take the place of the domestic courts and that it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Chamber was furthermore satisfied that the relevant provisions of the civil law – although they were quite general and lacked detail in comparison with, for example, the Information Society Services Act – along with the relevant case-law, made it clear that a media publisher was liable for any defamatory statements made in its publication. The Chamber had regard to the fact that the applicant company was a professional publisher which operated one of the largest news portals in Estonia, and also that a degree of notoriety had been attributable to comments posted in its commenting area. Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. 63. The Chamber further found that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. In the Chamber ’ s view, the fact that the actual authors of the comments were also in principle liable did not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others. 64. As regards the proportionality of the interference, the Chamber noted that there was no dispute that the comments in question had been of a defamatory nature. In assessing the proportionality of the interference with the applicant company ’ s freedom of expression, the Chamber had regard to the following elements. It examined firstly the context of the comments, secondly, the measures applied by the applicant company in order to prevent or remove defamatory comments, thirdly, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and, fourthly, the consequences of the domestic proceedings for the applicant company. 65. In particular, the Chamber considered that the news article published by the applicant company that had given rise to the defamatory comments had concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degree of caution in order to avoid being held liable for damaging the reputation of others. However, the prior automatic filtering and notice-and-take-down system used by the applicant company had not ensured sufficient protection for the rights of third parties. Moreover, publishing news articles and making readers ’ comments on them public had been part of the applicant company ’ s professional activities and its advertising revenue depended on the number of readers and comments. The applicant company had been able to exercise a substantial degree of control over readers ’ comments and it had been in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not easily be established. In any event, the Chamber was not convinced that measures allowing an injured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured party ’ s right to respect for his or her private life. It had been the applicant company ’ s choice to allow comments by non-registered users, and by doing so it had to be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company had been ordered to pay, the restriction on its freedom of expression was considered to have been justified and proportionate. There had accordingly been no violation of Article 10 of the Convention. B. The parties ’ submissions to the Grand Chamber 1. The applicant company (a) General remarks 66. The applicant company argued that in today ’ s world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance – comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The possibility for “ everyone ” to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship. 67. As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters ’ freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability. (b) Delfi ’ s role 68. The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation. (c) Lawfulness 69. The applicant company argued that the interference with its freedom of expression – including its right to store information and to enable users to impart their opinions – was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on electronic commerce, the Estonian Information Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level ( Recital 46 of the Preamble to the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff. 70. The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a “ novel area related to new technologies ” as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments. (d) Legitimate aim 71. The applicant company did not dispute that the interference in question had a legitimate aim. (e) Necessary in a democratic society 72. According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia ); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to comment freely on daily news and assume responsibility independently for their own comments would be abandoned. 73. The applicant company argued that the Supreme Court ’ s judgment had had a “ chilling effect ” on freedom of expression and that it had restricted the applicant company ’ s freedom to impart information. It amounted to the establishment of an obligation to censor private individuals. 74. In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors. 75. Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers ’ negative reactions had not been caused by the article but by the shipping company. 76. Secondly, the applicant company had taken sufficient measures to prevent or remove defamatory comments; in the present case, the comments in question had been removed on the same day that the applicant company had been notified of them. 77. Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber ’ s finding that it was difficult to establish the identity of the authors of the comments and contended that the authors ’ identities could be established in the “ pre-trial taking of evidence ” procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties. 78. Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content of which it was not the author. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability the original plaintiff would not have been left without a remedy – he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established “ pressing social need ” for the liability of Internet service providers. 79. The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals. 80. Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law. 2. The Government (a) General remarks 81. The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court ’ s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Obligations Act, rather than the Directive on electronic commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company ’ s allegations regarding the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators ’ liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same section; and the comments could be amended or deleted only by Delfi. The applicant company ’ s liability should be assessed in that specific context. 82. The Government emphasised that there was no dispute that the comments in question had been defamatory. 83. The Government noted that, despite the applicant company ’ s allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; it was still possible to post anonymous comments on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7 - 10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier comments section where registered comments and anonymous comments were shown separately. (b) Lawfulness 84. The Government insisted that the interference with the applicant company ’ s rights had been “ prescribed by law ”. They referred to the domestic legislation and case-law summarised in paragraphs 32 to 36, 38 and 39 of the Chamber judgment, as well as the Court ’ s relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi – which encouraged the posting of comments on the articles selected and published by it – could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in Delfi, it was more than clear that Internet media had a wide influence over the public and that, in order to protect the private life of others, liability rules had to apply to new media as well. 85. The Government reiterated that the applicant company ’ s references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found this not to be the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi ’ s comments section, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case – Delfi chose the articles and their titles; Delfi invited readers to comment and set the Rules on posting comments (including that the comments had to be related to the article); the amount of advertising revenue Delfi received increased the more comments were posted; Delfi also selectively monitored the comments – the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU ’ s case-law, such as L ’ Oréal SA and Others (cited above), was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability provided in the Directive on electronic commerce. (c) Legitimate aim 86. The Government submitted that the interference with the applicant company ’ s rights under Article 10 had the legitimate aim of protecting the honour of others. (d) Necessary in a democratic society 87. As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention. 88. The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following. 89. Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers ’ comments on these articles in the same section had been part of the applicant company ’ s professional activity as a discloser of information. Delfi invited readers to comment on its articles – often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing – which in turn brought in advertising revenue. 90. Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring the protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company ’ s responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person ’ s honour were no longer sufficient because the offensive comments had already reached the general public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason. 91. Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings – a remedy which was preferable to criminal remedies in defamation cases – investigative measures such as surveillance procedures were not accessible. In respect of the procedure for “ pre-trial taking of evidence ”, the Government argued that this was not a reasonable alternative in the case of anonymous comments for the following two reasons: (a) the relevant Internet Protocol ( IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used; and (b) even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had posted them, for example in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons. 92. Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments – the majority of which were anonymous – had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi ’ s case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320), and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company ’ s civil liability had not had a “ chilling effect ” on the freedom of expression, but was justified and proportionate. 93. Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles. C. The third-party interveners ’ submissions 1. The Helsinki Foundation for Human Rights 94. The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news, and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power to remove access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime. 95. The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value. 2. Article 19 96. Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way round. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites. 97. Article 19 contended that the Directive on electronic commerce was meant to shield websites from liability for their users ’ comments, regardless of their own content. Article 19 insisted that, while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts – rather than publishers – for the purposes of the comments section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content in issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them. 3. Access 98. According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, both on and offline. 99. Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms. 100. As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in South Korea had demonstrated that real-name policy failed to improve meaningfully comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments. 4. Media Legal Defence Initiative 101. Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different points of view to be aired. 102. MLDI noted that the boundaries between access and content were now increasingly blurred and “ intermediaries ” included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users ’ perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression. 103. MLDI contended that it was the States ’ task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the European Union. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content. 104. MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names. 5. EDiMA, CCIA Europe and EuroISPA 105. The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties. 106. The third-party interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of “ actual knowledge ” and, secondly, States were prohibited from requiring host providers to carry out general monitoring of content. 107. They noted that, while some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed. 108. The third-party interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive. 109. The third-party interveners argued that established law in the European Union and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale. D. The Court ’ s assessment 1. Preliminary remarks and the scope of the Court ’ s assessment 110. The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. That is undisputed and has been recognised by the Court on previous occasions (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012, and Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, nos. 3002/03 and 23676/03, § 27, ECHR 2009 ). However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Articles 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that the possibility of imposing liability for defamatory or other types of unlawful speech must, in principle, be retained, constituting an effective remedy for violations of personality rights. 111. On this basis, and in particular considering that this is the first case in which the Court has been called upon to examine a complaint of this type in an evolving field of technological innovation, the Court considers it necessary to delineate the scope of its inquiry in the light of the facts of the present case. 112. Firstly, the Court observes that the Supreme Court recognised (see paragraph 14 of its judgment of 10 June 2009, set out in paragraph 31 above) that “ [p] ublishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs. ” 113. The Court sees no reason to call into question the above distinction made by the Supreme Court. On the contrary, the starting-point of the Supreme Court ’ s reflections, that is, the recognition of differences between a portal operator and a traditional publisher, is in line with the international instruments in this field, which manifest a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audio - visual media, on the one hand and Internet-based media operations, on the other. In the recent Recommendation of the Committee of Ministers to the member States of the Council of Europe on a new notion of media, this is termed a “ differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe ” (see paragraph 7 of the Appendix to Recommendation CM/Rec(2011)7, quoted in paragraph 46 above). Therefore, the Court considers that because of the particular nature of the Internet, the “ duties and responsibilities ” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher as regards third-party content. 114. Secondly, the Court observes that the Supreme Court of Estonia found that the “ legal assessment by the courts of the twenty comments of a derogatory nature [ was ] substantiated. The courts [had] correctly found that those comments [were] defamatory since they [were] of a vulgar nature, degrade[d] human dignity and contain[ ed ] threats ” (see paragraph 15 of the judgment, set out in paragraph 31 above). Further, in paragraph 16 of its judgment, the Supreme Court reiterated that the comments degraded “ human dignity ” and were “ clearly unlawful ”. The Court notes that this characterisation and analysis of the unlawful nature of the comments in question (see paragraph 18 above) is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence against L. 115. Consequently, the Court considers that the case concerns the “ duties and responsibilities ” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them. 116. Accordingly, the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topic without the discussion being channelled by any input from the forum ’ s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or blog as a hobby. 117. Furthermore, the Court notes that the applicant company ’ s news portal was one of the biggest Internet media publications in the country; it had a wide readership and there was a known public concern regarding the controversial nature of the comments it attracted (see paragraph 15 above). Moreover, as outlined above, the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence. Thus, the establishment of their unlawful nature did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful. It is against this background that the Court will proceed to examine the applicant company ’ s complaint. 2. Existence of an interference 118. The Court notes that it was not in dispute between the parties that the applicant company ’ s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts ’ decisions. The Court sees no reason to hold otherwise. 119. Such an interference with the applicant company ’ s right to freedom of expression must be “ prescribed by law ”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “ necessary in a democratic society ”. 3. Lawfulness 120. The Court reiterates that the expression “ prescribed by law ” in the second paragraph of Article 10 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, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001 ‑ VI; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A; and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II). 121. One of the requirements flowing from the expression “ prescribed by law ” is foreseeability. Thus, a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV, and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141 ). 122. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed ( ibid., § 142). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references to Cantoni v. France, 15 November 1996, § 35, Reports 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI). 123. In the present case the parties ’ opinions differed as to whether the interference with the applicant company ’ s freedom of expression was “ prescribed by law ”. The applicant company argued that there was no domestic law according to which an intermediary was to be taken as a professional publisher of comments posted on its website by third parties regardless of whether it was aware of their specific content. On the contrary, the applicant company relied on the domestic and European legislation on Internet service providers and argued that it expressly prohibited the imposition of liability on service providers for third-party content. 124. The Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors. They added that there was no case-law on the basis of which the applicant company could have presumed that the owner of an Internet news portal as a new media publication was not liable for the comments posted on its articles. In their view the Court should proceed from the facts as established and the law as applied and interpreted by the domestic courts and not take account of the applicant company ’ s references to EU law. In any event, the EU law referred to by the applicant company actually supported the domestic courts ’ interpretations and conclusions. 125. The Court observes that the difference in the parties ’ opinions as regards the law to be applied stems from their diverging views on the issue of how the applicant company is to be classified. According to the applicant company, it should be classified as an intermediary as regards the third-party comments, whereas the Government argued that the applicant company was to be seen as a media publisher, including with regard to such comments. 126. The Court observes (see paragraphs 112 - 13 above) that the Supreme Court recognised the differences between the roles of a publisher of printed media, on the one hand, and an Internet portal operator engaged in media publications for an economic purpose, on the other. However, the Supreme Court found that because of their “ economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator [were] publishers/disclosers ” for the purposes of section 1047 of the Obligations Act (see paragraph 14 of the judgment, set out in paragraph 31 above). 127. The Court considers that, in substance, the applicant company argues that the domestic courts erred in applying the general provisions of the Obligations Act to the facts of the case as they should have relied upon the domestic and European legislation on Internet service providers. Like the Chamber, the Grand Chamber reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140, and Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999 ‑ III ). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). Thus, the Court confines itself to examining whether the Supreme Court ’ s application of the general provisions of the Obligations Act to the applicant company ’ s situation was foreseeable for the purposes of Article 10 § 2 of the Convention. 128. Pursuant to the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 33 ‑ 38 above), as interpreted and applied by the domestic courts, the applicant company was considered a publisher and deemed liable for the publication of the clearly unlawful comments. The domestic courts chose to apply these norms, having found that the special regulation contained in the Information Society Services Act transposing the Directive on electronic commerce into Estonian law did not apply to the present case since the latter related to activities of a merely technical, automatic and passive nature, unlike the applicant company ’ s activities, and that the objective pursued by the applicant company was not merely the provision of an intermediary service (see paragraph 13 of the Supreme Court ’ s judgment, set out in paragraph 31 above). In this particular context the Court takes into account the fact that some countries have recognised that the importance and the complexity of the subject matter, involving the need to ensure proper balancing of different interests and fundamental rights, call for the enactment of specific regulations for situations such as that pertaining in the present case (see paragraph 58 above). Such action is in line with the “ differentiated and graduated approach ” to the regulation of new media recommended by the Council of Europe (see paragraph 46 above) and has found support in the Court ’ s case-law (see, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63-64, ECHR 2011 ). However, although various legislative approaches are possible in legislation to take account of the nature of new media, the Court is satisfied on the facts of this case that the provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act, along with the relevant case-law, made it foreseeable that a media publisher running an Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments, of the type in issue in the present case, on its news portal. 129. The Court accordingly finds that, as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia. Public concern had already been expressed before the publication of the comments in the present case and the Minister of Justice had noted that victims of insults could bring a suit against Delfi and claim damages (see paragraph 15 above). Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention. 4. Legitimate aim 130. The parties before the Grand Chamber did not dispute that the restriction of the applicant company ’ s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. The Court sees no reason to hold otherwise. 5. Necessary in a democratic society (a) General principles 131. The fundamental principles concerning the question whether an interference with freedom of expression is “ necessary in a democratic society ” are well established in the Court ’ s case-law (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013) and have been summarised as follows. “ ( 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 ... ” 132. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999 ‑ III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas, cited above, § 59). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998 ‑ IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I). 133. Moreover, the Court has previously held that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ). At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63). 134. In considering the “ duties and responsibilities ” of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audio - visual media often have a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports 70, p. 262). The methods of objective and balanced reporting may vary considerably, depending among other things on the media in question (see Jersild, cited above, § 31 ). 135. The Court has held that the “ punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so ” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 ‑ III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, and Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013 ). 136. Moreover, the Court has held 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 Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports 1998 ‑ VII; Garaudy v. France (dec.), no. 65831/01, ECHR 2003 ‑ IX; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004 ‑ XI; Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005; and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007). 137. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012). 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, the 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, cited above, § 84 ). 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 was 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, 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 ). (b) Application of the above principles to the present case (i) Elements in the assessment of proportionality 140. The Court notes that it is not disputed that the comments posted by readers in reaction to the news article published in the comments section on the applicant company ’ s Internet news portal were of a clearly unlawful nature. Indeed, the applicant company removed the comments once it was notified by the injured party, and described them as “ infringing ” and “ illicit ” before the Chamber (see paragraph 84 of the Chamber judgment). Moreover, the Court is of the view that the majority of the impugned comments amounted to hate speech or incitements to violence and as such did not enjoy the protection of Article 10 (see paragraph 136 above). Thus, the freedom of expression of the authors of the comments is not in issue in the present case. Rather, the question before the Court is whether the domestic courts ’ decisions, holding the applicant company liable for these comments posted by third parties, were in breach of its freedom to impart information as guaranteed by Article 10 of the Convention. 141. The Court observes that, although the applicant company immediately removed the comments in question from its website upon notification by L. ’ s lawyers (see paragraphs 18 - 19 above), the Supreme Court held the applicant company liable on the basis of the Obligations Act as it should have prevented the publication of comments with clearly unlawful contents. It then referred to section 1047(3) of the Obligations Act, according to which disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the “ gravity of the potential violation ”. The Supreme Court thus held that, after the disclosure, the applicant company had failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. The inactivity of the applicant company was thus deemed unlawful as it had not “ proved the absence of culpability ” under section 1050(1) of the Obligations Act (see paragraph 16 of the Supreme Court judgment, set out in paragraph 31 above). 142. In the light of the Supreme Court ’ s reasoning, the Court must, according to its consistent case-law, examine whether the domestic courts ’ finding of liability on the part of the applicant company was based on relevant and sufficient grounds in the particular circumstances of the case (see paragraph 131 above). The Court observes that, in order to resolve the question whether the domestic courts ’ decisions holding the applicant company liable for the comments posted by third parties were in breach of its freedom of expression, the Chamber identified the following aspects as relevant for its analysis: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company ’ s liability, and the consequences of the domestic proceedings for the applicant company (see paragraphs 85 et seq. of the Chamber judgment). 143. The Court agrees that these aspects are relevant for the concrete assessment of the proportionality of the interference in issue within the scope of the Court ’ s examination of the present case (see paragraphs 112 - 17 above ). (ii) Context of the comments 144. As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments regarding unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comments section, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company ’ s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the author of the comments did not mean that it had no control over the comments section (see paragraph 13 of the judgment, set out in paragraph 31 above). 145. The Court also notes in this regard that the Rules on posting comments on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors ’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company ’ s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court ’ s reasoning, the Court agrees with the Chamber ’ s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal. 146. In sum, the Court considers that it was sufficiently established by the Supreme Court that the applicant company ’ s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider. The Court therefore finds that the Supreme Court based its reasoning on this issue on grounds that were relevant for the purposes of Article 10 of the Convention. (iii) Liability of the authors of the comments 147. In connection with the question whether the liability of the actual authors of the comments could serve as a sensible alternative to the liability of the Internet news portal in a case like the present one, 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 ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media. It also refers in this connection to a recent judgment of the Court of Justice of the European Union in Google Spain SL and Google Inc. (cited above), in which that court, albeit in a different context, dealt with the problem of the availability on the Internet of information seriously interfering with a person ’ s private life over an extended period of time, and found that the individual ’ s fundamental rights, as a rule, overrode the economic interests of the operator of a search engine and the interests of other Internet users (see paragraph 56 above). 148. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators. 149. Thus, in the judgment in K.U. v. Finland, concerning an offence of “ malicious misrepresentation ” of a sexual nature against a minor, the Court found that “ [a] lthough freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others ” (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). The Court in that case rejected the Government ’ s argument that the applicant had had the possibility of obtaining damages from the service provider, finding that this was not sufficient in the circumstances of the case. It held that there had to be a remedy enabling the actual offender to be identified and brought to justice, whereas at the relevant time the regulatory framework of the respondent State had not provided for the possibility of ordering the Internet service provider to divulge the information required for that purpose (ibid., §§ 47 and 49). Although K.U. v. Finland concerned a breach classified as a criminal offence under the domestic law and involved a more sweeping intrusion into the victim ’ s private life than the present case, it is evident from the Court ’ s reasoning that anonymity on the Internet, while an important factor, must be balanced against other rights and interests. 150. As regards the establishment of the identity of the authors of the comments in civil proceedings, the Court notes that the parties ’ positions differed as to its feasibility. On the basis of the information provided by the parties, the Court observes that the Estonian courts, in the “ pre-trial taking of evidence ” procedure under Articles 244 et seq. of the Code of Civil Procedure (see paragraph 40 above), have granted requests by defamed persons for the disclosure by online newspapers or news portals of the IP addresses of authors who had posted allegedly defamatory comments and for the disclosure by Internet access providers of the names and addresses of the subscribers to whom the IP addresses in question had been assigned. The examples provided by the Government show mixed results: in some cases it had proved possible to establish the computer from which the comments had been made, while in other cases, for various technical reasons, this had proved impossible. 151. According to the Supreme Court ’ s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to bring a claim effectively against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the judgment in Krone Verlag GmbH & Co. KG v. Austria (no. 4) ( no. 72331/01, § 32, 9 November 2006) in which it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company ’ s right to freedom of expression. (iv) Measures taken by the applicant company 152. The Court notes that the applicant company highlighted the number of comments on each article on its website, and therefore the articles with the most lively exchanges must have been easily identifiable for the editors of the news portal. The article in issue in the present case attracted 185 comments, apparently well above average. The comments in question were removed by the applicant company some six weeks after they were uploaded on the website, upon notification by the injured person ’ s lawyers to the applicant company (see paragraphs 17 - 19 above). 153. The Court observes that the Supreme Court stated in its judgment that “ [o]n account of the obligation arising from law to avoid causing harm, the [applicant company] should have prevented the publication of comments with clearly unlawful contents ”. However, it also held that “ [a]fter the disclosure, the [applicant company had] failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative ” (see paragraph 16 of the judgment, set out in paragraph 31 above). Therefore, the Supreme Court did not explicitly determine whether the applicant company was under an obligation to prevent the uploading of the comments to the website or whether it would have sufficed under domestic law for the applicant company to have removed the offending comments without delay after publication to escape liability under the Obligations Act. The Court considers that, when assessing the grounds upon which the Supreme Court relied in its judgment entailing an interference with the applicant company ’ s Convention rights, there is nothing to suggest that the national court intended to restrict its rights to a greater extent than that required to achieve the aim pursued. On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court ’ s judgment must be understood to mean that had the applicant company removed the comments without delay after publication, this would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145 ) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression. 154. The pertinent issue in the present case is whether the national court ’ s findings that liability was justified, as the applicant company had not removed the comments without delay after publication, were based on relevant and sufficient grounds. With this in mind, account must first be taken of whether the applicant company had put in place mechanisms that were capable of filtering comments amounting to hate speech or speech entailing an incitement to violence. 155. The Court notes that the applicant company took certain measures in this regard. There was a disclaimer on the Delfi news portal stating that the writers of the comments – and not the applicant company – were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Furthermore, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place, whereby anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose to bring it to the attention of the portal administrators. In addition, on some occasions the administrators removed inappropriate comments on their own initiative. 156. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention (see paragraph 136 above). The Court notes that as a consequence of this failure of the filtering mechanism these clearly unlawful comments remained online for six weeks (see paragraphs 18 -19 above). 157. The Court observes in this connection that on some occasions the portal administrators did remove inappropriate comments on their own initiative and that, apparently some time after the events of the present case, the applicant company set up a dedicated team of moderators. Having regard to the fact that there are ample opportunities for anyone to make his or her voice heard on the Internet, the Court considers that a large news portal ’ s obligation to take effective measures to limit the dissemination of hate speech and speech inciting violence – the issue in the present case – can by no means be equated to “ private censorship ”. While acknowledging the “ important role ” played by the Internet “ in enhancing the public ’ s access to news and facilitating the dissemination of information in general ” ( see Ahmet Yıldırım, cited above, § 48, and Times Newspapers Ltd, cited above, § 27 ), the Court reiterates that it is also mindful of the risk of harm posed by content and communications on the Internet (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63; see also Mosley, cited above, § 130). 158. Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments. 159. Lastly, the Court observes that the applicant company has argued (see paragraph 78 above) that the Court should have due regard to the notice-and-take-down system that it had introduced. If accompanied by effective procedures allowing for rapid response, this system can in the Court ’ s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court ’ s case-law (see paragraph 136 above), the Court considers, as stated above (see paragraph 153 ), that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. (v) Consequences for the applicant company 160. Finally, turning to the question of consequences of the domestic proceedings for the applicant company, the Court notes that it was obliged to pay the injured person the equivalent of EUR 320 in compensation for non-pecuniary damage. It agrees with the finding of the Chamber that this sum, also taking into account the fact that the applicant company was a professional operator of one of the largest Internet news portals in Estonia, can by no means be considered disproportionate to the breach established by the domestic courts (see paragraph 93 of the Chamber judgment). The Court notes in this connection that it has also had regard to the post- Delfi domestic case-law on the liability of the operators of Internet news portals (see paragraph 43 above). It observes that in these cases the lower courts have followed the Supreme Court ’ s judgment in Delfi but no awards have been made for non-pecuniary damage. In other words, the tangible result for the operators in post- Delfi cases has been that they have taken down the offending comments but have not been ordered to pay compensation for non-pecuniary damage. 161. The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia ’ s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company ’ s freedom of expression was disproportionate on that account either. (vi) Conclusion 162. Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts ’ imposition of liability on the applicant company was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company ’ s right to freedom of expression. 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. It first noted the conflicting realities between the benefits of Internet, notably the unprecedented platform it provided for freedom of expression, and its dangers, namely the possibility of hate speech and speech inciting violence being disseminated worldwide in a matter of seconds and sometimes remaining remain persistently available online. The Court further observed that the unlawful nature of the comments in question was obviously based on the fact that the majority of the comments were, viewed on their face, tantamount to an incitement to hatred or to violence against the owner of the ferry company. Consequently, the case concerned the duties and responsibilities of Internet news portals, under Article 10 § 2 of the Convention, which provided on a commercial basis a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engaged in clearly unlawful speech, which infringed the personality rights of others and amounted to hate speech and incitement to violence against them. In cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, the Court considered that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. Based on the concrete assessment of these aspects and taking into account, in particular, the extreme nature of the comments in question, the fact that they had been posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction (320 euro) imposed on the applicant company, the Court found that the Estonian courts’ finding of liability against the applicant company had been a justified and proportionate restriction on the portal’s freedom of expression. |
984 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | II. RELEVANT DOMESTIC LAW 143. Since 2010 criminal proceedings in Georgia have been conducted under a new Code of Criminal Procedure, which superseded the previous Code which had been in force since 1998. A. Provisions governing arrest 144. Pursuant to Article 171 § 1 of the Code, an arrest must be based on a judicial warrant. Sub-paragraphs (a) to (f) of Article 171 § 2 set out the situations in which an arrest may, by way of exception, be made without a warrant. The only relevant one in this case is sub-paragraph (e), according to which a warrant is not necessary if there is a risk of flight. Article 171 § 3 lays down a further requirement for an arrest without a warrant: that the relevant risk cannot be prevented by an alternative measure proportionate to the circumstances of the alleged offence and the accused’s personal characteristics. 145. Pursuant to Article 176 § 1 of the Code, an arrest record must be drawn up immediately after the arrest. If there are valid reasons why that cannot be done, it has to be drawn up as soon as the arrestee is brought to a police station or before a law-enforcement authority. B. Provisions governing pre-trial detention 1. Grounds for ordering pre-trial detention 146. Under Article 198 § 2 of the Code, a measure of restraint – which, in accordance with Article 199 § 1, can be bail, an undertaking not to leave one’s place of residence and to observe good behaviour, a surety, or pre-trial detention – may be applied if it can reasonably be assumed that without it the accused will flee, destroy evidence or reoffend. Article 198 § 1 provides that an accused may only be placed in pre-trial detention or subjected to an alternative measure of restraint if a less severe measure cannot ensure that he or she will appear for trial or cease his or her alleged criminal activities. 147. Pursuant to Article 205 § 1 of the Code, pre-trial detention can only be imposed where it is the only means of preventing the accused from fleeing or interfering with the course of justice, obstructing the gathering of evidence or reoffending. 2. Maximum duration 148. Article 205 § 2 of the Code provides – as does Article 18 § 6 of the Constitution – that the duration of pre-trial detention must not exceed nine months. Article 205 § 2 goes on to specify that the period of pre-trial detention normally begins to run from the time of arrest and lasts until judgment of the first-instance court on the merits of the criminal case. It also provides that if the period comes to an end before the first-instance judgment is given, the accused must be released. 149. Article 205 § 3 of the Code provides that if the time between the accused’s arrest and the pre-trial conference hearing exceeds sixty days, the accused must be released, unless the court has adjourned the pre-trial conference at the request of one of the parties, as is possible under Article 208 § 3 of the Code. 150. In a 2015 case brought by another of UNM’s leaders, Mr G.U., former mayor of Tbilisi (no. 3/2/646, 15 September 2015), the Constitutional Court held that to the extent that Article 205 § 2 of the Code could be read as allowing someone to be kept in pre-trial detention for more than nine months if the prosecuting authorities brought further charges against him or her in a separate case with undue delay, it ran counter to Article 18 § 6 of the Constitution, according to which pre-trial detention could not last longer than nine months (see paragraph 148 above). 3. Judicial review 151. Under Article 206 §§ 1 and 8 of the Code, the accused may at any stage of the proceedings, including at the pre-trial conference hearing, request that the measure of restraint to which he or she has been subjected be varied or set aside. Within twenty-four hours, the court must review the request on the papers, checking whether it raises new essential issues. If it finds that to be the case, it must then examine the request at an oral hearing. Article 206 § 9 provides that in such proceedings the burden of proof lies on the prosecution. Pursuant to Article 206 § 6, the court’s decision on the request must set out the circumstances on the basis of which the court deems it necessary to apply, vary or set aside a measure of restraint. 152. Article 219 § 4 (b) of the Code provides that during the pre-trial conference hearing the court must review the need to keep the accused in pre-trial detention regardless of whether he or she has sought release, and must then review every two months the need to keep the accused in custody. C. Power of the prosecuting authorities to drop charges 153. Under Article 250 § 1 of the Code, the prosecutor dealing with a case may, with the consent of the higher prosecutor, fully or partly drop the charges, or replace them with lesser ones. If the charges are fully or partly dropped, the court must fully or partly discontinue the proceedings. Under Article 250 § 2, the prosecution may do so at any point in the proceedings. Article 250 § 3 specifies that charges which have been dropped may not be re-introduced against the same accused. III. RELEVANT INTERNATIONAL MATERIALS A. Council of Europe 154. The Convention’s early drafts did not contain a provision corresponding to Article 18. Such a provision appeared for the first time in the draft produced by the Conference of Senior Officials in June 1950 (see Collected edition of the “Travaux Préparatoires” of the European Convention on Human Rights, Martinus Nijhoff, vol. IV, 1977, pp. 190, 226 and 280). In its report to the Committee of Ministers, that Conference described that early version – Article 13 § 2 of its draft – as an application of the theory of “ détournement de pouvoir ”, expressed in English as “misapplication of power” (ibid., pp. 258-59). On 16 August 1950, during the first part of the Consultative Assembly’s second session, when speaking about the ways in which States could restrict the rights enshrined in the Convention, the French delegate, Mr P.-H. Teitgen, referred to the restrictions’ “ légalité interne ”, and drew a parallel with abuses of power by the administration in France, noting that they could be annulled by the Conseil d’État (see Collected edition of the “Travaux Préparatoires” of the European Convention on Human Rights, Martinus Nijhoff, vol. V, 1979, p. 293). B. European Union law 155. Misuse of power is a well-established concept in European Union law. It has, since 1952, been one of the grounds for annulling acts of institutions of the Union, formerly the Communities (see Article 33 § 1 of the 1951 Treaty establishing the European Coal and Steel Community (Treaty of Paris, 261 UNTS 140), as originally worded, and later reworded by Article H § 13 of the 1992 Treaty on European Union (Maastricht Treaty, 1757 UNTS 3) and then by Article 4 § 15 (a) of the 2001 Treaty of Nice amending the Treaty on European Union, the treaties establishing the European Communities and certain related acts (2701 UNTS 3); Article 146 § 1 of the 1957 Treaty Establishing the European Atomic Energy Community (298 UNTS 167), as originally worded, and later reworded as Article 146 § 2 by Article I § 13, Title IV, of the Treaty on European Union, and then again reworded by Article 3 § 15 of the Treaty of Nice; Article 173 § 1 of the 1957 Treaty Establishing the European Economic Community (Treaty of Rome, 298 UNTS 11), as originally worded, and then reworded as Article 173 § 2 by Article G § 53 of the 1992 Treaty on European Union, later again reworded and renumbered Article 230 § 2 by Article 2 § 34 of the Treaty of Nice; Article K.7 § 6 (later renumbered Article 35) of the Treaty on European Union, as reworded by Article 1 § 11 of the 1997 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (2700 UNTS 161); and, currently, Article 263 § 2 of the Consolidated Version of the Treaty on the Functioning of the European Union (OJ 2016/C 202/01, p. 47)). 156. According to the settled case-law of the Court of Justice of the European Union, an act is vitiated by misuse of power if it appears, on the basis of objective, relevant and consistent evidence, to have been undertaken solely or mainly for an end other than that for which the power in question was conferred (see, among many other authorities, judgment of the Court of Justice of the European Communities of 13 November 1990 in FEDESA and Others, C-331/88, EU:C:1990:391, paragraph 24; judgment of the Court of Justice of the European Union of 16 April 2013 in Spain and Italy v Council, C-274/11 and C-295/11, EU:C:2013:240, paragraph 33; and judgment of the Court of Justice of the European Union of 4 December 2013 in Commission v Council, C-111/10, EU:C:2013:785, paragraph 80). C. Case-law of the Inter-American Court of Human Rights 157. Article 30 in fine of the American Convention on Human Rights (1144 UNTS 123) provides that the restrictions which “may be placed on the enjoyment or exercise of the rights or freedoms recognized [in that Convention] may not be applied except ... in accordance with the purpose for which such restrictions have been established”. 158. The Inter-American Court of Human Rights has held that this means that “the ends for which the restriction has been established [must] be legitimate, that is, that they pursue ‘reasons of general interest’ and do not stray from the ‘purpose for which (they) have been established’”, and that this requirement is a “teleological criterion ... establish[ing] control through the deviation of power” (see Advisory opinion OC-6/86 of the Inter-American Court of Human Rights on The Word “Laws” in Article 30 of the American Convention on Human Rights, 9 May 1986, Series A No. 6, § 18 (b)). 159. The Inter-American Court has also held that when checking the real purpose of measures alleged to amount to a misuse of power, it can rely on circumstantial evidence, indicia and presumptions, and has in practice done so (see Judgment of the Inter-American Court of Human Rights in Ivcher Bronstein v. Peru, Merits, Reparations and Costs, 6 February 2001, Series C No. 74, §§ 154-64; Judgment of the Inter-American Court of Human Rights in Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, Preliminary Objection, Merits, Reparations and Costs, 23 August 2013, Series C No. 266, §§ 173-77; and Judgment of the Inter-American Court of Human Rights in Constitutional Tribunal (Camba Campos et al.) v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, 28 August 2013, Series C No. 268, §§ 210-19). 160. In a recent case, in which the Venezuelan authorities had refused to renew the broadcasting licence of the country’s oldest and most popular television station, a vocal critic of the government, the Inter-American Court first noted that in their decisions the authorities had set out an aim – to ensure more variety in the content available to viewers – which was legitimate. However, the court went on to examine whether that had been the real aim of the decisions. It took as its starting point the presumption that the authorities had acted in good faith. But it noted four strongly worded public statements by the then president, Mr Hugo Chávez, made shortly before the decisions, that the licence would not be renewed because the television station was hostile to the government. Analysing those statements jointly, the court concluded that the refusal to renew the licence had in reality been meant to silence criticism of the government. Though not referring to Article 30 of the American Convention, it held that this had been a misuse of power (see Judgment of the Inter-American Court of Human Rights in Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, 22 June 2015, Series C No. 293, §§ 184-99). D. Disguised prosecution for political opinions in extradition law 161. The rule in extradition law that extradition must be refused if the requesting State is seeking someone’s extradition for a seemingly ordinary criminal offence in order to prosecute or punish him or her on account of a political opinion is well settled. 162. It features in all modern multilateral conventions and instruments relating to extradition (Article 3 § 2 of the 1957 European Convention on Extradition (ETS No. 24; 359 UNTS 273); Article 5 of the 1977 European Convention on the Suppression of Terrorism (ETS No. 90; 1137 UNTS 93); Article 6 § 6 of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1582 UNTS 95); Article 15 of the 1999 International Convention for the Suppression of the Financing of Terrorism (2178 UNTS 197); Article 16 § 14 of the 2000 United Nations Convention against Transnational Organized Crime (2225 UNTS 209); Article 44 § 15 of the 2003 United Nations Convention against Corruption (2349 UNTS 41); Recital 12 of the 2002 Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA, OJEC 2002/L 190, pp. 1-18); Article 3 (b) of the 1990 United Nations Model Treaty on Extradition (UN Doc. A/RES/45/116); and clause 13(a)(i) of the 1966 London Scheme for Extradition within the Commonwealth, as amended in 2002). 163. The rule has also been included in many bilateral extradition treaties (see, for example, Article 7 § 4 of the 1972 Treaty on Extradition between Denmark and the United States of America (952 UNTS 29); Article 4 § 2 of the 1978 Treaty Concerning Extradition between Germany and the United States of America (1220 UNTS 269); Article 3 § 1 (a) of the 1979 Treaty on Extradition and Mutual Assistance in Criminal Matters between Turkey and the United States of America (1273 UNTS 83); Article 4 (a) of the 1985 Treaty of Extradition between Australia and Italy (1598 UNTS 31); Article 3 § 1 (b) of the 1987 Treaty Concerning Extradition between Australia and Germany (1586 UNTS 185); Article 3 § 1 (b) of the 1987 Treaty on Extradition between Australia and Luxembourg (1536 UNTS 31); Article 4 § 3 of the 1996 Extradition Treaty between Cyprus and the United States of America (2927 UNTS ...); Article 4 § 4 of the 1996 Extradition Treaty between France and the United States of America (2179 UNTS 341); Article 3 (b) of the 2005 Extradition Treaty between Canada and Italy (2859 UNTS 197); Article 3 (b) of the 2007 Extradition Treaty between France and the People’s Republic of China (... UNTS ...); and Article 3 § 7 of the 2010 Extradition Treaty between Belarus and Bulgaria (2849 UNTS ...)). 164. It also features in many domestic extradition laws. For instance, in France it is set out in Article 696-4 § 2 of the Code of Criminal Procedure; in the United Kingdom it is set out in section 13(a) of the Extradition Act of 2003; and in Greece it is set out in Article 438 (c) of the Code of Criminal Procedure. 165. Under nearly all the international instruments, the standard to which a hidden political purpose must be proved is “substantial grounds for believing”. THE LAW I. SCOPE OF THE CASE 169. The Court considers it important to clarify from the outset the scope of the case. 170. The applicant’s complaints concerned only his deprivation of liberty between his arrest on 21 May 2013 and his conviction by the Kutaisi City Court on 17 February 2014 on the criminal charges against him relating to the State Programme for Job Seekers and the house in the village of Kvariati. The Court is therefore not directly concerned with whether the applicant’s detention following his conviction was compatible with the Convention, or with the other criminal cases against the applicant (see paragraphs 56-59 above). II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 171. The applicant complained that his arrest and pre-trial detention had been unlawful and unjustified. He relied on Article 5 § 1 of the Convention, which provides, 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: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so[.]” A. The Chamber judgment 172. The Chamber did not deal with the lawfulness of the applicant’s arrest. 173. With regard to the pre-trial detention, the Chamber held that the applicant’s case could not be likened to cases in which the detainees had been held in custody solely on the basis that the prosecution had filed an indictment against them, and thus without a clear legal basis and for a potentially unlimited period of time. Though such a problem had existed in Georgia under the 1998 Code of Criminal Procedure, that was no longer the case under the 2010 Code of Criminal Procedure. The absence of a time ‑ limit in the decisions to place the applicant in pre-trial detention, which was consistent with the Georgian courts’ practice at that time, did not make that detention unlawful within the meaning of Article 5 § 1 of the Convention, since Article 205 § 2 of the 2010 Code made it clear that pre-trial detention could not last longer than nine months, which was a point that the applicant could easily have understood through the advice of his counsel. Moreover, under Article 206 of that Code he could at any point during those nine months have sought release on the basis that the grounds for his pre-trial detention had ceased to obtain. It could not therefore be said that he had been detained for a potentially unlimited time or otherwise placed in a position of legal uncertainty. B. The parties’ submissions to the Grand Chamber 1. The applicant 174. The applicant submitted that his arrest had been unlawful because it had been made without a judicial warrant although none of the exceptions to that requirement applied in his case. The circumstances of his arrest showed that the decision to take him into custody had been taken in advance and for an ulterior purpose, and that the summons to appear for questioning had not been a bona fide attempt to obtain his cooperation in relation to the case. Yet, despite the lack of any urgency, the authorities had not applied for a warrant. Moreover, even though the applicant had specifically asked the Kutaisi City Court to review the lawfulness of his arrest, that court had not done so in any detail. 175. The pre-trial detention had not met the requirement of legal certainty because, when deciding to place the applicant in detention, the Kutaisi City Court had not fixed its duration. Although that court had made a passing reference to Article 205 of the Code of Criminal Procedure, the second paragraph of which laid down the maximum duration of pre-trial detention, it had not made it clear for how long it was placing the applicant in custody. Since the nine-month maximum could arguably be counted separately for each charge, and since the applicant had been presented with several charges, the position in his case had been particularly uncertain. The Georgian courts’ practice of not fixing time-limits for pre-trial detention was in breach of the requirement of legal certainty. That was not offset by the possibility of subsequently seeking review of the detention because under Georgian law the bar for doing so was too high: only where “new essential issues” had arisen after the initial placement in detention. 176. Moreover, the detention had been unjustified, as a less restrictive measure could have been used. In opting for detention, the Kutaisi City Court had principally had regard to the seriousness of the charges against the applicant rather than his personal circumstances, and had not explored whether a less stringent measure, such as bail or a personal surety, possibly combined with measures restricting the possibility of leaving Georgia, could have ensured the applicant’s availability for trial. The real purpose of his detention had been to exclude him from political life. The ulterior motives for the detention had become manifest when the applicant had been taken to the Chief Public Prosecutor on 14 December 2013 and asked for information and threatened by him. That incident had shown that the detention had been arbitrary. 2. The Government 177. The Government submitted that the applicant’s arrest had fully complied with Article 171 of the Code of Criminal Procedure, which in turn was fully in line with Article 5 § 1 of the Convention. The arrest had been made without a warrant owing to the risk of flight. The decision to arrest had not been taken in advance, but had been based on the developments which had followed the summons to the applicant to appear for questioning: his wife’s departure from Georgia and his reaction during questioning to the incriminating evidence with which he had been presented. Having reviewed the file, the Kutaisi City Court had been satisfied that no procedural breaches had occurred in the course of his arrest. The risk of the applicant’s fleeing had been further corroborated by the incident on 30 November 2012, and confirmed by the Kutaisi City Court’s decision to place him in pre-trial detention. 178. The arrest had been based on a reasonable suspicion that the applicant had committed the offences with which he had been charged. In the months before the arrest, the prosecuting authorities had obtained ample evidence supporting those charges. The Kutaisi City Court, whose decision had been upheld by the Kutaisi Court of Appeal, had reviewed the prosecution’s assessment of that evidence and had been satisfied of the existence of a reasonable suspicion. The purpose of the applicant’s arrest had only been to bring him before a competent legal authority – which had been done the following day. There was no evidence that the authorities had had anything else in mind. 179. The applicant’s pre-trial detention had also been lawful and justified. The prosecution had supported its request to place him in pre-trial detention with enough evidence and arguments, and the Kutaisi City Court had found that a less stringent measure would not have prevented the risks of flight or obstruction of the proceedings. C. The Court’s assessment 1. Whether the Grand Chamber has jurisdiction to examine the complaint relating to the applicant’s arrest 180. The “case” referred to the Grand Chamber under Article 43 of the Convention is the application as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII). In his application the applicant complained under Article 5 § 1 of the Convention of the alleged unlawfulness of his arrest. Though not specifically dealing with that complaint in its reasoning, the Chamber declared the application admissible as a whole. The complaint relating to the applicant’s arrest was therefore covered by its admissibility decision. This is also borne out by the Chamber’s adverting to the arrest in its description of the facts of the case (see paragraph 18 of its judgment). It follows that the Grand Chamber can examine the complaint that the arrest was in breach of Article 5 § 1 of the Convention (see, mutatis mutandis, K. and T. v. Finland, cited above, § 145; Kamasinski v. Austria, 19 December 1989, § 59, Series A no. 168; and Scott v. Spain, 18 December 1996, § 59, Reports of Judgments and Decisions 1996-VI). 2. General principles under Article 5 § 1 (c) of the Convention 181. Article 5 § 1 of the Convention guarantees the fundamental right to liberty and security, which is of primary importance in a “democratic society” (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12; Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; and Assanidze v. Georgia [GC], no. 71503/01, § 169, ECHR 2004-II). More generally, Article 5 is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts)). 182. As is apparent from its wording, which must be read in conjunction with both sub-paragraph (a) and paragraph 3, which forms a whole with it, the first limb of Article 5 § 1 (c) only permits deprivation of liberty in connection with criminal proceedings (see, among other authorities, Ciulla v. Italy, 22 February 1989, § 38, Series A no. 148; Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000-IX; and Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 72, ECHR 2011 (extracts)). 183. To be compatible with that provision, an arrest or detention must meet three conditions. 184. First, it must be based on a “reasonable suspicion” that the person concerned has committed an offence, which presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence. What is “reasonable” depends on all the circumstances, but the 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 (see, among other authorities, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182; Labita v. Italy [GC], no. 26772/95, § 155, ECHR 2000-IV; and O’Hara v. the United Kingdom, no. 37555/97, §§ 34 and 36, ECHR 2001-X). 185. Secondly, the purpose of the arrest or detention must be to bring the person concerned before a “competent legal authority” – a point to be considered independently of whether that purpose has been achieved (see, among other authorities, Brogan and Others v. the United Kingdom, 29 November 1988, §§ 52-53, Series A no. 145-B; Murray v. the United Kingdom, 28 October 1994, §§ 67-68, Series A no. 300-A; and K.-F. v. Germany, 27 November 1997, § 61, Reports 1997-VII). 186. Thirdly, an arrest or detention under sub-paragraph (c) must, like any deprivation of liberty under Article 5 § 1 of the Convention, be “lawful” and “in accordance with a procedure prescribed by law” (see, among other authorities, Guzzardi v. Italy, 6 November 1980, § 102, Series A no. 39; Kemmache v. France (no. 3), 24 November 1994, §§ 37 and 42, Series A no. 296-C; and K.-F. v. Germany, cited above, § 63). Those two expressions, which overlap to an extent, refer essentially to domestic law and lay down the obligation to comply with its substantive and procedural rules (see, among other authorities, Winterwerp, §§ 39 and 45; Kemmache (no. 3), §§ 37 and 42; K.-F. v. Germany, § 63; and Assanidze, § 171, all cited above). That is not, however, sufficient; Article 5 § 1 of the Convention also requires that domestic law itself be compatible with the rule of law. This in particular means that a law which permits deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application (see, among other authorities, Amuur v. France, 25 June 1996, § 50, Reports 1996-III; Jėčius, cited above, § 56; Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000-III; and Kakabadze and Others v. Georgia, no. 1484/07, §§ 62 and 68, 2 October 2012). It also means that an arrest or detention must be compatible with the aim of Article 5 § 1, which is to prevent arbitrary deprivation of liberty (see, among other authorities, Winterwerp, § 39; Jėčius, § 56; Baranowski, § 51; Assanidze, § 171; and Kakabadze and Others, § 63, all cited above). This presupposes, in particular, that a deprivation of liberty genuinely conforms with the purpose of the restriction permitted by the relevant sub-paragraph of Article 5 § 1 (see Winterwerp, cited above, § 39; Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93; and Saadi v. the United Kingdom [GC], no. 13229/03, § 69, ECHR 2008). 3. Application of those principles (a) The applicant’s arrest 187. The applicant did not claim before the Court that his arrest had not been based on a reasonable suspicion of his having committed the offences in relation to which he was taken into custody, and the Government gave a full account of the incriminating material obtained by the authorities before the arrest (see paragraphs 29-31 and 174 above). Nothing in that material appears to cast doubt on the reasonableness of the suspicion against the applicant, either on the facts or as a matter of criminal law (compare Gusinskiy v. Russia, no. 70276/01, § 55, ECHR 2004-IV, and contrast Lukanov v. Bulgaria, 20 March 1997, §§ 42-45, Reports 1997-II; Kandzhov v. Bulgaria, no. 68294/01, §§ 57-61, 6 November 2008; Ilgar Mammadov v. Azerbaijan, no. 15172/13, §§ 90-99, 22 May 2014; and Rasul Jafarov v. Azerbaijan, no. 69981/14, §§ 121-32, 17 March 2016). Nor does it appear that the charges themselves were related to the exercise of the applicant’s rights under the Convention. 188. There is, moreover, nothing to suggest that at the time of the applicant’s arrest there was no intention to bring him before a competent legal authority. That happened the next day (see paragraphs 33 and 38 above). That was enough to make his arrest compatible with the “purpose” requirement of Article 5 § 1 (c) of the Convention (compare Gusinskiy, cited above, § 55). The question whether the arrest also pursued another purpose falls to be examined under Article 18 of the Convention. 189. It remains to be established whether the arrest was “lawful” and “in accordance with a procedure prescribed by law”. 190. Under Article 171 § 1 of the Georgian Code of Criminal Procedure, an arrest must as a rule be based on a judicial warrant. Article 171 § 2 sets out the situations in which the arrest may, by way of exception, be made without a warrant. The only one relied on by the authorities in this case was point (e), according to which a warrant can be dispensed with if there is a risk of flight. Article 171 § 3 lays down a further requirement: that the risk cannot be prevented by an alternative measure that is proportionate to the circumstances of the alleged offence and to the characteristics of the accused (see paragraphs 26 and 144 above). The points on which the parties disagreed were whether there was such a risk in the applicant’s case and whether it could have been averted without resorting to his arrest. 191. Although those questions concern the application of Georgian law, the Court is competent to examine them. As already noted, where the Convention refers back to domestic law, as it does in Article 5 § 1 (c), disregard of that law entails a breach of the Convention, which means that the Court can and should review whether that law was complied with (see, among other authorities, Winterwerp, cited above, § 46). Its power in that respect is, however, subject to inherent limits, because even where the Convention refers to domestic law, it is in the first place for the national authorities to interpret and apply that law (see Winterwerp, § 46; Kemmache (no. 3), § 37; and Lukanov, § 41, all cited above). 192. In the record of the applicant’s arrest, the investigator noted that in 2012 he had tried to cross the border with a fake passport, which made it likely that he would attempt to leave Georgia, and that he had been out of the country many times, which showed that he would have no difficulties going abroad (see paragraph 26 above). Accordingly, she answered the first question directly and the second one implicitly. The Court does not find that her findings on those two points, which should not be revisited with the benefit of hindsight, were arbitrary or patently in breach of Article 171 §§ 2 and 3 of the Code of Criminal Procedure. Whilst a fuller explanation of why the risk of the applicant’s fleeing was sufficiently serious and could not be averted otherwise than by arresting him would have been desirable, nothing suggests that the level of detail of the reasons set forth in the record of the applicant’s arrest clearly fell short of the requirements of Georgian law. 193. Moreover, when deciding the next day whether or not to place the applicant in pre-trial detention, the Kutaisi City Court also touched, albeit briefly, on the lawfulness of his arrest (see paragraph 39 above), and its decision was upheld by the Kutaisi Court of Appeal (see paragraph 43 above). The Court cannot depart lightly from the national authorities’ and courts’ findings on the application of domestic law. 194. In view of the foregoing, the Court finds no breach of Article 5 § 1 of the Convention in relation to the applicant’s arrest. (b) The applicant’s pre-trial detention 195. As already noted, the applicant did not claim before the Court that his arrest and pre-trial detention had not been based on a reasonable suspicion. He rather took issue with the Kutaisi City Court’s failure to fix the duration of his pre-trial detention, and argued that the detention had been unjustified because it had been imposed without due consideration for his personal situation and because it had in reality pursued an ulterior purpose. 196. The Court does not find that either of those points casts doubt on the compatibility of the applicant’s pre-trial detention with Article 5 § 1 (c) of the Convention. 197. The Kutaisi City Court’s failure to fix its duration does not raise an issue under that provision. That was not required under Georgian law (contrast Logvinenko v. Russia, no. 44511/04, §§ 37-38, 17 June 2010; Fedorenko v. Russia, no. 39602/05, §§ 48-50 and 54-55, 20 September 2011; and Roman Petrov v. Russia, no. 37311/08, §§ 43-45, 15 December 2015). Article 18 § 6 of the Georgian Constitution and Article 205 § 2 of the Code of Criminal Procedure limit pre-trial detention to nine months, but that does not mean that the court imposing it must specify its duration in its decision. Article 206 § 6 of the Code, which sets out the elements which the court’s decision on pre-trial detention must contain, says nothing about an obligation to fix the period of the detention (see paragraphs 148 and 151 above). 198. Nor is there a freestanding requirement under Article 5 § 1 of the Convention that decisions ordering pre-trial detention fix its duration. 199. It is true that detention for an unpredictable amount of time owing to a legislative gap is in breach of the requirement of legal certainty (see Baranowski, cited above, § 56; Gigolashvili v. Georgia, no. 18145/05, §§ 31 and 35, 8 July 2008; Yeloyev v. Ukraine, no. 17283/02, § 53, 6 November 2008; Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, §§ 70 ‑ 72, 27 November 2008; Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 106-10, 27 January 2009; Feldman v. Ukraine, nos. 76556/01 and 38779/04, § 73, 8 April 2010; Kharchenko v. Ukraine, no. 40107/02, § 74, 10 February 2011; Tymoshenko v. Ukraine, no. 49872/11, § 267, 30 April 2013; and Gal v. Ukraine, no. 6759/11, § 36, 16 April 2015). But that was not the case here. Georgian law provided a clear basis for the applicant’s pre-trial detention and itself limited its duration. Admittedly, in three judgments the Court has said that if a national court does not fix the duration of pre-trial detention, that gives rise to uncertainty even if its maximum is clear from domestic law (see Lutsenko v. Ukraine, no. 6492/11, § 73, 3 July 2012; Gal, cited above, § 37; and Kleutin v. Ukraine, no. 5911/05, § 105, 23 June 2016). But those rulings must be understood in context. In all three cases the national courts had also failed to give even minimally cogent reasons for ordering pre-trial detention. They are similar to several cases in which the Court found a breach of Article 5 § 1 of the Convention owing to the combination of a lack of any reasons for ordering pre-trial detention and a failure to fix its duration (see Khudoyorov v. Russia, no. 6847/02, §§ 136-37, ECHR 2005-X (extracts); Vladimir Solovyev v. Russia, no. 2708/02, §§ 95-98, 24 May 2007; Gubkin v. Russia, no. 36941/02, §§ 111-14, 23 April 2009; Arutyunyan v. Russia, no. 48977/09, §§ 92-93, 10 January 2012; and Pletmentsev v. Russia, no. 4157/04, § 43, 27 June 2013, with further references). Those judgments should not therefore be read as laying down a requirement under Article 5 § 1 of the Convention for the national courts to fix the duration of pre-trial detention in their decisions regardless of how the matter is regulated in domestic law. All that this provision requires is rules that are foreseeable in their application. 200. Under Article 205 § 2 of the Georgian Code of Criminal Procedure, the applicant could not be detained for more than nine months in connection with the charges against him (see paragraph 148 above). It cannot therefore be said that there was uncertainty about the rules governing his pre-trial detention or a risk that it would last indefinitely. 201. In the event, he was convicted on 17 February 2014, eight months and twenty-seven days after being arrested (see paragraph 53 above). 202. It is true that in 2015 Georgia’s Constitutional Court held that to the extent that Article 205 § 2 of the Code could be read as allowing someone to be kept in pre-trial detention for more than nine months if the prosecuting authorities brought further charges against him in a separate case with undue delay, it was in breach of Article 18 §§ 1 and 6 of the Constitution (see paragraph 150 above). However, the reasons given by that court show that its ruling was meant to forestall the possibility for the prosecuting authorities to keep bringing fresh charges against someone already in pre ‑ trial detention to justify prolonging that detention beyond the nine-month period. 203. No such issue, however, arose in the applicant’s case. Between his arrest on 21 May 2013 and his conviction on 17 February 2014 he was presented with further charges twice. The first time was on 28 May 2013, six days after he was first placed in pre-trial detention (see paragraph 56 above). Those charges, though leading to a separate decision on 30 May 2013 by the Tbilisi City Court to place him in pre-trial detention (ibid.), did not serve as a basis for keeping him in such detention for longer than nine months, as he was convicted in the criminal case under consideration here less than nine months after his arrest. The second time was on 24 June 2013, one month and five days after he was first placed in pre-trial detention (see paragraph 57 above). Those charges did not, however, become a basis for keeping the applicant in pre-trial detention, as the Tbilisi City Court turned down the prosecution’s request to that effect (ibid.). All those factors, and in particular the relatively short interval between bringing the initial and the subsequent charges, make it hard to see those subsequent charges as an expedient on the part of the prosecuting authorities to circumvent the statutory rule capping the amount of time that the applicant could be kept in pre-trial detention. 204. Thus, to the extent that the bringing of fresh charges in separate proceedings could be said to introduce uncertainty in the application of Article 205 § 2 of the Code, it did not affect the applicant. In proceedings originating in an individual application the Court’s task is not to review domestic law in the abstract but to determine whether the way in which it was applied to the applicant gave rise to a breach of the Convention (see, among other authorities, Golder v. the United Kingdom, 21 February 1975, § 39 in fine, Series A no. 18; Minelli v. Switzerland, 25 March 1983, § 35, Series A no. 62; and Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR 1999-II). 205. Whether the Kutaisi City Court paid enough heed to the applicant’s personal situation and, more generally, whether the reasons that it gave for placing him in pre-trial detention were sufficient raises an issue not under Article 5 § 1, but under Article 5 § 3 (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 44, Series A no. 77; Khodorkovskiy v. Russia, no. 5829/04, §§ 161 and 163, 31 May 2011; Mikiashvili v. Georgia, no. 18996/06, § 94, 9 October 2012; Buzadji, cited above, § 99 in fine; and Vaščenkovs v. Latvia, no. 30795/12, § 42, 15 December 2016). This will be examined in detail below. In view of the case-law cited in paragraph 199 above, it cannot be said that the reasons given by that court for placing the applicant in pre-trial detention suffered from such shortcomings as to call into question the lawfulness of the detention within the meaning of Article 5 § 1 (contrast Lutsenko, §§ 67-72, and Tymoshenko, §§ 269-70, both cited above). 206. Moreover, the reasons given by that court show that the applicant’s pre-trial detention did pursue a purpose consistent with sub-paragraph (c) of Article 5 § 1 of the Convention. That was enough to make it compatible with that provision. As already noted, the question whether it also pursued another purpose falls to be examined under Article 18 of the Convention. 207. In sum, the applicant’s pre-trial detention was in line with Georgian law, which, as applied to him, was sufficiently foreseeable and was not arbitrary. 208. There has therefore been no breach of Article 5 § 1 in relation to the applicant’s pre-trial detention. III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 209. The applicant complained that the Georgian courts had not given relevant and sufficient reasons for his pre-trial detention, either when they had first imposed it or when they had later reviewed it. He relied on Article 5 § 3 of the Convention, which provides, in so far as relevant: “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. The Chamber judgment 210. The Chamber noted that the applicant had spent a total of eight months and twenty-seven days in pre-trial detention. The whole of that period could not automatically be justified on the basis of the reasons set out in the initial decisions to place him in detention. It was therefore necessary to verify not only whether the courts had given relevant and sufficient reasons for placing the applicant in detention, but also whether they had done so when rejecting the applicant’s request for release on 25 September 2013. The initial decisions had endorsed both reasons cited by the prosecution for placing the applicant in custody: the risk that he would flee and the risk that he would obstruct the proceedings. The latter risk had been substantiated by reference to the applicant’s former high position and by his conduct during the incident of 30 November 2012. The former risk had been borne out by the applicant’s possession of a fake passport, his wife’s hasty departure abroad on the day he had been summoned for questioning, and the discovery of large sums of cash in his flat. All of those grounds had been sufficiently specific. It had therefore not been unreasonable to place the applicant in pre-trial detention. 211. By contrast, when the applicant sought release on 25 September 2013, the Kutaisi City Court, instead of checking even more carefully whether his continued detention remained justified, had rejected his request with one sentence, without giving any reasons for its decision, in breach of the relevant provisions of the 2010 Code of Criminal Procedure and of Article 5 § 3 of the Convention. B. The Government’s preliminary objection 1. The parties’ submissions 212. The Government submitted that the applicant had failed to appeal against the Kutaisi City Court’s decision of 25 September 2013 to the Investigative Chamber of the Kutaisi Court of Appeal, as would have been possible under Article 207 of the Code of Criminal Procedure. Such an appeal was an adequate and effective remedy. The Government therefore invited the Grand Chamber to declare the complaint inadmissible on that ground, pointing out that under Article 35 § 4 in fine of the Convention the Court could do so at “any stage of the proceedings”. 213. In their oral submissions on behalf of the applicant, his representatives submitted that under the Georgian Code of Criminal Procedure decisions taken by the first-instance court during the pre-trial conference hearing were not amenable to appeal. 2. The Grand Chamber’s assessment 214. Under Article 35 § 4 in fine of the Convention, the Court can dismiss an application that it considers inadmissible “at any stage of the proceedings”. The Grand Chamber can therefore examine, if appropriate, questions relating to the admissibility of an application. If it finds that an application, or part of it, should have been declared inadmissible, it may – even at the merits stage – reconsider the decision in that respect (see, among other authorities, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; and Muršić v. Croatia [GC], no. 7334/13, § 69, ECHR 2016). But that possibility is subject to Rule 55 of the Rules of Court, according to which “[a]ny plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 or 54 [of the Rules of Court]” (see K. and T. v. Finland, cited above, § 145; N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; and Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II). Only exceptional circumstances, in particular that the grounds for the plea occurred or came to light later, could dispense a respondent Government from the obligation to raise it in their observations under Rule 51 or 54 (see N.C. v. Italy, cited above, § 44; Mooren v. Germany [GC], no. 11364/03, § 57, 9 July 2009; and Medvedyev and Others v. France [GC], no. 3394/03, § 69, ECHR 2010). 215. In their observations on the admissibility of the application filed in the course of the Chamber proceedings the Government did not claim that the applicant could have availed himself of the remedy under Article 207 of the Code of Criminal Procedure. They did not argue that there were exceptional circumstances that dispensed them from the obligation to do so, and the Grand Chamber has itself been unable to discern any such circumstances. The Government are thus estopped from raising that objection. 216. It follows that the objection must be dismissed. C. Merits of the complaint 1. The parties’ submissions 217. The applicant submitted that the decision to place him in pre-trial detention had been essentially motivated by the seriousness of the charges against him and had failed to take into account his arguments in favour of his release. He invited the Grand Chamber to disregard the specific points pleaded by the prosecution in support of their contention that he might flee, noting that neither the Kutaisi City Court nor the Kutaisi Court of Appeal had mentioned them in their decisions. He also pointed out that he had been allowed to travel out of Georgia six times after the incident of 30 November 2012, each time returning as scheduled. The risk of his obstructing the proceedings had not been properly established either. Lastly, the courts had failed to duly consider alternative measures, such as bail or a personal guarantee. 218. The applicant went on to argue that the Kutaisi City Court’s failure to give reasons for its decision of 25 September 2013 had been in breach of the Code of Criminal Procedure and had been particularly problematic since at that time he had already been in custody for four months. 219. The Government submitted that in their request that the applicant be placed in pre-trial detention, the prosecution had put forward a number of concrete arguments in support of their submission that there was a risk that he would flee or obstruct the proceedings. The Kutaisi City Court had heard those arguments at a public hearing at which the applicant had been able to comment on them, and had then endorsed them, as had the Kutaisi Court of Appeal. 220. The Government went on to submit that in opposing the applicant’s request for release of 25 September 2013 the prosecution had likewise cited a number of concrete arguments. Those arguments had formed the basis for the Kutaisi City Court’s decision to reject the applicant’s request. That court had made its decision after fully adversarial proceedings and had taken into consideration all arguments put forward by the parties in those proceedings. Its oral ruling had not breached the Code of Criminal Procedure. 2. The Court’s assessment (a) Period to be taken into consideration 221. The period to be taken into consideration began on 21 May 2013, when the applicant was arrested, and ended on 17 February 2014, when he was convicted at first instance (see paragraphs 26 and 53, and Buzadji, cited above, § 85, with further references). It therefore lasted eight months and twenty-seven days. (b) The reasonableness of that period (i) General principles 222. The persistence of a reasonable suspicion that the detainee has committed an offence is a condition sine qua non for the validity of his or her continued detention. But when the national judicial authorities first examine, “promptly” after the arrest, whether to place the arrestee in pre-trial detention, that suspicion no longer suffices, and the authorities must also give other relevant and sufficient grounds to justify the detention. Those other grounds may be a risk of flight, a risk of pressure being brought to bear on witnesses or of evidence being tampered with, a risk of collusion, a risk of reoffending, or a risk of public disorder and the related need to protect the detainee (see Buzadji, cited above, §§ 87-88 and 101-02, with further references). Those risks must be duly substantiated, and the authorities’ reasoning on those points cannot be abstract, general or stereotyped (see, among other authorities, Letellier v. France, 26 June 1991, § 51, Series A no. 207; Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225; Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX (extracts); and Giorgi Nikolaishvili v. Georgia, no. 37048/04, §§ 73 and 76, 13 January 2009). 223. In particular, the risk of flight cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other factors, such as the accused’s character, morals, assets, links with the jurisdiction, and international contacts (see W. v. Switzerland, 26 January 1993, § 33 Series A no. 254-A; Smirnova, cited above, § 60; and Buzadji, cited above, § 90). Moreover, the last sentence of Article 5 § 3 of the Convention shows that when the only remaining reason for detention is the fear that the accused will flee and thus avoid appearing for trial, he or she must be released pending trial if it is possible to obtain guarantees that will ensure that appearance (see Wemhoff v. Germany, 27 June 1968, p. 25, § 15, Series A no. 7; Letellier, cited above, § 46; and, more recently, Luković v. Serbia, no. 43808/07, § 54, 26 March 2013). 224. Similarly, the risk of pressure being brought to bear on witnesses cannot be based only on the likelihood of a severe penalty, but must be linked to specific facts (see, among other authorities, Jarzyński v. Poland, no. 15479/02, § 43, 4 October 2005; Kozłowski v. Poland, no. 31575/03, § 43, 13 December 2005; Krzysztofiak v. Poland, no. 38018/07, § 48, 20 April 2010; and Saghinadze and Others v. Georgia, no. 18768/05, § 137, 27 May 2010). 225. 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, among other authorities, Wemhoff, cited above, pp. 24-25, § 12; Neumeister v. Austria, 27 June 1968, p. 37, §§ 4-5, Series A no. 8; Letellier, cited above, § 35; and Buzadji, cited above, § 91). (ii) Application of those principles (α) The applicant’s initial placement in pre-trial detention 226. The reasons given by the Kutaisi City Court for its decision to place the applicant in pre-trial detention – the risk that he would flee and would influence witnesses (see paragraph 39 above) – were relevant. The question is whether they were also sufficient. 227. The Kutaisi City Court did not set out all the arguments cited by the prosecution in relation to those matters, especially with respect to the risk of flight. It did, however, expressly refer to the prosecution’s pleadings. By doing so, it made it clear that it had taken into account the specific points put forward by the prosecution and had found them sufficient to justify placing the applicant in pre-trial detention. Whilst more detailed reasoning would have been desirable, the Court is satisfied that this was enough in the circumstances, and that it can have regard to those specific points. It is true that under Article 5 § 3 of the Convention it is in the first place for the national judicial authorities to review all considerations for or against detention and set them out in their decisions (see, among other authorities, Letellier, § 35; Labita, § 152; and McKay, § 43, all cited above). But there is no single standard of reasoning in those matters, and nothing precludes the national judicial authorities from endorsing or incorporating by reference the specific points cited by the authorities seeking the imposition of pre-trial detention (see, mutatis mutandis, Helle v. Finland, 19 December 1997, §§ 56-60, Reports 1997-VIII, and Lăcătuş and Others v. Romania, no. 12694/04, § 100, 13 November 2012). 228. The risk of the applicant’s influencing witnesses was not strongly substantiated. It is true that many witnesses in the case against him were former subordinates of his, and that he wielded considerable influence in some sectors of Georgian society (see paragraph 31 above). But the proceedings had been opened more than five months before his arrest, and it was not asserted that during that time he had tried to influence any witnesses in those proceedings. The only concrete incident cited in support of that proposition – the applicant’s alleged attempt to intimidate the head of the Border Police on 30 November 2012 – even assuming that it was true, which the applicant denied – had taken place before the case had been opened, and had no connection with the charges in respect of which the applicant was placed in pre-trial detention. 229. The risk of flight was established in more concrete terms. The prosecution referred, generally, to the applicant’s wide network of international contacts and his many trips abroad. They also noted, more specifically, that his wife had left Georgia straight after he had been summoned for questioning on 21 May 2013, that a search of his flat had revealed large sums of cash which he might have prepared in order to facilitate his departure from Georgia, and that he still had a fake passport (see paragraph 34 above). Those facts, which were amplified by the seriousness of the punishment which awaited the applicant if convicted, suggest that at that time, straight after he was charged, the risk of his fleeing abroad could be seen as sufficiently real and incapable of being averted by a less restrictive measure. 230. The Court therefore finds that there has been no breach of Article 5 § 3 in relation to the applicant’s initial placement in pre-trial detention. (β) The continued justification for the applicant’s pre-trial detention 231. The first challenge against the applicant’s detention was made on 25 September 2013, four months after it had been imposed. In their submissions to the Kutaisi City Court on that date the applicant’s counsel and the prosecution essentially rehashed the arguments about the risk of flight and the risk of influencing witnesses that they had already made on 22 May 2013. The only new arguments by the prosecution appear to have been that the applicant might have other unidentified fake passports and that such passports had already been used by other former officials to flee abroad, and that the risk of influencing witnesses remained, as the witnesses, though already interviewed, were still due to testify at trial, which was by law the only way of adducing their evidence. On the applicant’s side, the only new argument appears to have been that the investigation had already been concluded (see paragraphs 47 and 48 above). 232. All those arguments had a bearing on the continued justification for the applicant’s pre-trial detention, and none of them was entirely devoid of merit. Even if many of them were identical to those made four months previously, they all required a fresh examination, since by their very nature reasons which at first justify the imposition of pre-trial detention can change over time (see Letellier, cited above, § 39; I.A. v. France, 23 September 1998, §§ 105 and 110, Reports 1998-VII; and Kudła v. Poland [GC], no. 30210/96, § 114, ECHR 2000-XI). 233. Yet the Kutaisi City Court said nothing in relation to any of those points (see paragraph 49 above). By omitting to give any reasons for its decision of 25 September 2013, it did not make it clear why it was persuaded by the reasons cited by the prosecution and why it found that they outweighed the arguments put forward by the applicant. It is not for the Court to supplement that omission (see Ilijkov v. Bulgaria, no. 33977/96, § 86, 26 July 2001; Panchenko v. Russia, no. 45100/98, § 105, 8 February 2005; and Giorgi Nikolaishvili, cited above, § 77). 234. In its subsequent decision, of 7 October 2013, the Kutaisi City Court briefly noted that the applicant had not pointed to any new facts or evidence, but had merely referred to the reasons set out in the initial decision to place the applicant in pre-trial detention. It thus entirely disregarded the passage of time and made it clear that it was for the applicant to show that his detention was no longer justified (see paragraph 51 above). However, under Article 5 § 3 of the Convention it is incumbent on the authorities, rather than the detainee, to establish the persistence of reasons justifying continued pre-trial detention (see Ilijkov, cited above, § 85, and Bykov v. Russia [GC], no. 4378/02, § 64 in fine, 10 March 2009). As already noted, even if such reasons exist when that detention is first imposed, they can by their very nature change over time. The reasons given by the Kutaisi City Court on 7 October 2013 did not therefore suffice to justify the continuation of the applicant’s detention. 235. In view of the above, the Court concludes that, at least from 25 September 2013 onwards, the applicant’s pre-trial detention ceased to be based on sufficient grounds, in breach of Article 5 § 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 236. The applicant complained that the Kutaisi City Court’s decision of 25 September 2013 rejecting his request for release had been given orally and had not contained any reasons. 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.” 237. Noting that it had examined the lack of reasons for the Kutaisi City Court’s decision of 25 September 2013 under Article 5 § 3 of the Convention, the Chamber did not find it necessary to review the same issue under Article 5 § 4 of the Convention. 238. The applicant pointed out that on 25 September 2013 the Kutaisi City Court had rejected his request for release orally and without giving any reasons for its decision, rendering his ensuing detention arbitrary. Since the initial risks of flight and obstruction of the proceedings – which had in any event never been duly substantiated – had necessarily diminished with the passage of time, the lack of any reasons had been particularly problematic. 239. The Government’s submissions on that complaint are summarised in paragraph 220 above. 240. The Court has already examined, under Article 5 § 3 of the Convention, the Kutaisi City Court’s failure to give any reasons for its decision of 25 September 2013 rejecting the applicant’s request for release (see paragraph 233 above). It sees no need to deal with the same point under Article 5 § 4 of the Convention as well (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 525, 25 July 2013). V. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 § 1 241. In his application, the applicant alleged that the purpose behind the criminal proceedings against him and his pre-trial detention had been to remove him from the political scene and to prevent him from standing in the Georgian presidential election in October 2013. 242. In his observations in reply to those of the Government, filed with the Chamber on 19 December 2014, the applicant further alleged that on 14 December 2013 the Chief Public Prosecutor had attempted to use his detention as leverage to pressure him to provide information about Mr Saakashvili’s bank accounts and about Mr Zhvania’s death. 243. The applicant relied on 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.” A. The Chamber judgment 244. The Chamber was not convinced that the criminal case against the applicant and his pre-trial detention had been intended to exclude him from Georgia’s political life, noting that the only evidence cited in support of that allegation were statements by institutions, non-governmental organisations and public figures. It was, however, persuaded by the applicant’s allegations about his late-night meeting with the Chief Public Prosecutor. It found the applicant’s account coherent and detailed. It also noted that the applicant had voiced his allegations immediately after the meeting; that his story had been partly confirmed by an official, Ms L.M., who had been dismissed shortly after speaking out; that the authorities had not provided access to recordings by the prison surveillance cameras which could have shed light on the allegations; and that the authorities had not duly checked the incident or provided any materials from the inquiry into it by the General Inspectorate of the Ministry of Prisons. The Chamber concluded that the applicant’s detention had been used not only for a legitimate law-enforcement purpose, but also for extraneous ones: to further the authorities’ investigation into Mr Zhvania’s death and to enable them to inquire into Mr Saakashvili’s finances. It accordingly concluded that there had been a breach of Article 18 of the Convention. B. The Government’s preliminary objection 1. The parties’ submissions 245. The Government submitted that the applicant had failed to raise his allegations about the meeting with the Chief Public Prosecutor within six months of the alleged meeting, or even within six months of his lawyer being informed that the inquiry into the matter by the Ministry of Prisons’ General Inspectorate had been closed. In the Government’s view, the applicant had thus failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. 246. The applicant submitted that he had raised his complaint under Article 18 of the Convention in good time. He also pointed out that the alleged incident had taken place after he had lodged his application, and stated that the Government’s argument was misconceived. 2. The Grand Chamber’s assessment 247. Although the Government did not raise the above objection in their observations on the admissibility of the application in the proceedings before the Chamber, there is no estoppel, notwithstanding the requirements of Rule 55 of the Rules of Court, because the six-month rule set out in Article 35 § 1 of the Convention is a public-policy one which the Court can, and indeed must, apply even of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 25-31, 29 June 2012, and Blokhin v. Russia [GC], no. 47152/06, §§ 102-03, ECHR 2016), and even for the first time in proceedings before the Grand Chamber following a referral (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 85, ECHR 2014 (extracts)). 248. The Grand Chamber can therefore examine whether the six-month rule was complied with. 249. The secret meeting with the Chief Public Prosecutor was said to have taken place a little over three weeks after the application was lodged (see paragraphs 1 and 60 above). The allegations in respect of it could not therefore feature in the application. They were not duly raised before the Court until the applicant filed his observations in reply to those of the Government in the proceedings before the Chamber, on 19 December 2014. That was more than six months after the alleged meeting and even more than six months after the applicant’s lawyer had been informed that the inquiry into the matter by the Ministry of Prisons’ General Inspectorate had been completed (see paragraphs 89 above). If the allegations are to be seen as a separate complaint, they were out of time. 250. But the Grand Chamber does not find that the allegations were a separate complaint under Article 18 of the Convention. They were simply a further aspect, or a further argument in support of, the complaint already set out in the application, namely, that the restriction of the applicant’s right to liberty had been applied for a purpose not prescribed by the Convention (see, mutatis mutandis, Sâmbata Bihor Greek Catholic Parish v. Romania (dec.), no. 48107/99, 25 May 2004; Rasmussen v. Poland, no. 38886/05, § 30, 28 April 2009; and Mathloom v. Greece, no. 48883/07, § 39, 24 April 2012, and contrast Ekimdjiev v. Bulgaria (dec.), no. 47092/99, 3 March 2005; Cornea v. Romania (dec.), no. 13755/03, § 51, 15 May 2012; Kırlangıç v. Turkey, no. 30689/05, § 54, 25 September 2012; and Fábián v. Hungary [GC], no. 78117/13, §§ 95-97, ECHR 2017 (extracts)). In examining a complaint the Court can take account of facts which are subsequent to the application but are directly related to those covered by it (see Stögmüller v. Austria, 10 November 1969, p. 41, § 7, Series A no. 9; Matznetter v. Austria, 10 November 1969, pp. 31-32, § 5, Series A no. 10; and, more recently, Khayletdinov v. Russia, no. 2763/13, § 82, 12 January 2016). 251. It follows that the Grand Chamber is not precluded from dealing with those allegations and that the Government’s objection must be dismissed. C. Merits of the complaint 1. The parties’ submissions (a) The applicant 252. The applicant submitted that Article 18 was a fundamental provision of the Convention. Its object was to protect democratic values, which, as was clear from the Preamble and the Court’s case-law, underlay the entire Convention. Pluralism, free elections and political parties were key among those values. That was particularly relevant in this case, in which criminal proceedings had been used to prevent a major opposition politician from taking part in the political process. The role of Article 18 was to prevent such abuses. The question how complaints under that provision were to be made out had been answered inconsistently by the Court in its case-law. Divergences could be detected in particular with respect to the standard of proof and the types of evidence capable of showing an ulterior purpose. Those points had to be resolved in a flexible and realistic way, for instance by requiring applicants to make a prima facie case and then shifting the burden of proof to the Government, or by taking account of the broader context. In cases in which the authorities had pursued more than one purpose, the presence of even one purpose not prescribed by the Convention was sufficient to give rise to a breach. 253. In the applicant’s case, there were two strands of evidence showing an ulterior purpose behind his arrest and pre-trial detention. On the one hand, there was evidence which showed that he had been taken out of his cell on 14 December 2013 and pressured by the Chief Public Prosecutor to provide information about Mr Zhvania’s death and about Mr Saakashvili’s bank accounts. On the other, there was the whole context showing that the applicant and other members of his political party had been targeted for political reasons. 254. The applicant’s version of the events of 14 December 2013 was more credible than that of the Government for a number of reasons. He had informed his lawyers about the incident and then spoken publicly about it at the first opportunity. His successive accounts of it had been detailed and consistent. Senior officials had from the outset dismissed his allegations out of hand and opposed a proper investigation into them. Both investigations into those allegations had been carried out by officials who had not been sufficiently independent. The second investigation, by the Chief Public Prosecutor’s Office, had been opened only after the Chamber judgment. The Government’s explanation about the limited amount of time for which the surveillance camera footage was kept was unconvincing. The footage from the surveillance cameras of private establishments and the road-traffic cameras had not been properly examined and had not been provided to his lawyer, in spite of his express request. The statements by prison officers during the internal inquiry had been very brief and formulaic. Neither Mr O.P. nor Mr D.D., the main protagonists, had been interviewed in the course of that inquiry. Nor had any attempt been made to take the applicant to Mr D.D.’s office in order to check his assertion that he could recognise it. It was odd that in their statements gathered during the criminal investigation all the prison officers had been able, without referring to contemporaneous records, to recall their movements and actions on a particular day two and a half years earlier; that called their credibility into question. There was evidence from three inmates, Mr G.Ts., Mr I.P. and Mr K.T., which supported the applicant’s account and which had not been properly rebutted by the Government. The statements of Mr O.P. and Mr D.D. during the second investigation were not credible. There had been no attempt to verify the applicant’s allegations by checking the mobile telephone records of the men in the car transporting him from Prison no. 9 to the Penitentiary Department or by carrying out an identity parade. Lastly, no proper explanation had been given for the exorbitant bonuses paid to various prison officials in December 2013. 255. The facts showing that the criminal proceedings against the applicant had been politically motivated and intended to remove him from the political scene in the run-up to the 2013 presidential election and thereafter were that: (a) shortly after the October 2012 parliamentary election criminal proceedings had been opened against many former members of UNM governments and other former high officials from UNM, which had prompted many foreign governments, international bodies, such as the Parliamentary Assembly of the Council of Europe, and non-governmental organisations to express concern about possible political persecution; (b) senior figures from Georgian Dream had publicly called for UNM’s elimination, and the Prime Minister had privately threatened a UNM politician with prosecutions against UNM figures; (c) in 2015 the Constitutional Court had deplored attempts to apply public pressure against it in the case brought by Mr G.U.; (d) in 2014 and 2015 courts in France, Greece and the United Kingdom had refused to extradite two high-ranking former UNM officials to Georgia, finding that the criminal prosecutions against them were politically motivated, and Interpol had recalled or refused to issue two “Red Notices” on the same basis; (e) the OSCE trial monitoring report had highlighted a number of shortcomings in the fourteen criminal cases against former UNM officials, including the cases against the applicant; (f) in the criminal case at issue in these proceedings, the prosecution had taken statements from 3,969 witnesses and had sought and obtained leave to call all of them at trial, with the intention of intimidating them, delaying the proceedings, and thus prolonging the applicant’s pre-trial detention; (g) the proceedings in that case had been conducted in Kutaisi even though both the applicant and his co-defendant, Mr Z.T., as well as most of the witnesses lived in Tbilisi; (h) several thousand UNM activists and supporters had been repeatedly questioned and intimidated by the law-enforcement authorities, a number of UNM figures had been assaulted without an adequate police response to the incidents, and many UNM officials at local level had been forced to resign or dismissed and prosecuted. (b) The Government 256. The Government submitted that there were very few cases in which the Court had examined complaints under Article 18, as the Convention’s whole structure rested on the assumption that the High Contracting Parties’ authorities acted in good faith. It was for the applicant to demonstrate convincingly that the authorities’ real aim had differed from the one proclaimed. A mere suspicion, however arguable, that the State’s entire legal machinery had lacked independence and had been misused was not sufficient. Otherwise, the Court would have to find a breach of Article 18 in every case in which the applicant’s status, wealth, reputation and so on gave rise to a suspicion that the restrictions of his or her Convention rights had been made for an ulterior political purpose. In other words, high political status did not grant immunity. That had been clearly stated in the Court’s case-law under Article 18. 257. Cases in which a breach of Article 18 had been found could be split into two groups: those in which there had existed direct proof of an ulterior purpose, and those in which, in spite of the absence of such proof, it had been possible reasonably to infer an ulterior purpose from case-specific facts. 258. In cases of the first kind, the ulterior purpose had been directly spelled out in written documents: an agreement with the authorities or official decisions. Evidence of that sort could not reasonably be rebutted or validly challenged by the respondent Government. But no such evidence had been put forward in this case, and it did not therefore fall into that category. 259. In cases of the second kind, the Court had made reasonable inferences about the ulterior purpose from combinations of facts which had not been disputed between the parties and which had clearly demonstrated the ulterior purpose. But since all the facts in the case at hand continued to be disputed and since the Government had validly rebutted all assertions made by the applicant, none of which were based on objective proof, the case did not fall into that category either. There was therefore no room for inferences such as those drawn by the Chamber. 260. The presumption of good faith on the part of the authorities, although rebuttable in theory, was difficult to overcome in practice. The presence of several purposes could not overcome it either. It could only be rebutted through incontrovertible evidence provided by the applicant, and in assessing the point the Court could only take into account the specific facts of the case. The standard of proof under Article 18 was very high and could differ from those applied domestically, and the burden of proof remained on the applicant throughout the proceedings. All that had been clearly stated in the Court’s case-law. 261. The criminal cases against the applicant and other UNM figures had been the result of more than twenty thousand complaints to the prosecuting authorities, lodged after the October 2012 elections by people who had fallen victim to abuses of power during UNM’s time in office. The need to respect and redress the rights of those complainants had been underlined by the Council of Europe’s Parliamentary Assembly and by the European Union Special Adviser on Constitutional and Legal Reform and Human Rights in Georgia. An International Prosecution Advisory Panel, set up in 2014 at the initiative of Georgia’s Chief Public Prosecutor to review the materials in high-profile cases processed by the Georgian prosecuting authorities and consisting of three foreign criminal-justice professionals, had found the evidence in those cases sufficient to justify prosecution. This showed that the applicant’s arrest and pre-trial detention had only been intended to bring him before a competent legal authority on a reasonable suspicion of having committed an offence. Since there had been no breach of Article 5 § 1 of the Convention, as confirmed by the Chamber, there was no room for a breach of Article 18 either. In fact, this was the only case in which the Court had found a violation of Article 18 in conjunction with Article 5 § 1 without having first found a violation of the latter – a possibility which had previously only been envisaged theoretically. In all previous cases, if the Court had found no breach of the Article in conjunction with which Article 18 had been pleaded, it had either not examined the complaint under Article 18 on the merits or had found no violation of that provision. The case at hand was also the only one in which the underlying facts continued to be disputed between the parties. 262. The evidence cited by the applicant in support of his claim that the prosecution against him had been politically motivated consisted of the opinions of others. However, under the Court’s case-law, such opinions were not enough to show an ulterior purpose. 263. Nor was there any direct or indirect proof supporting the assertion that the applicant’s detention had been used to obtain from him information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts. All the facts to which the applicant referred in support of that assertion were disputed rather than clearly established, and hence could not form the basis of inferences. Apart from the statement of Ms L.M. in May 2014, there was no evidence corroborating the allegation that the applicant had been covertly taken to the Chief Public Prosecutor. That allegation, first voiced three days after the alleged incident, was not proof of its reality. It had been examined twice, first during the inquiry by the Ministry of Prisons’ General Inspectorate and again in the course of the investigation by the Chief Public Prosecutor’s Office. The ample evidence gathered in those procedures – witness statements, video footage and prison records – had shown the applicant’s allegation to be false. During the hearing before the Grand Chamber, the Government further stated that while no one had asked the applicant anything about Mr Zhvania’s death on 14 December 2013, there was still a “huge question” to him in relation to that death (see paragraph 61 above). 2. The Court’s assessment (a) Interpretation and application of Article 18 of the Convention in the former Commission’s and the Court’s case-law 264. Since the Court’s examination of this case has brought to light a need to clarify its case-law in this area, it will first provide a survey of the existing case-law. (i) The former Commission 265. The former Commission, having briefly referred to Article 18 when examining a complaint under Article 10 of the Convention (see X v. Austria, no. 753/60, Commission decision of 5 August 1960, Yearbook 3, p. 310) and then in the context of the validity of derogations under Article 15 of the Convention (see De Becker v. Belgium, no. 214/56, Commission report of 8 January 1960, Series B no. 2, pp. 132-33, § 271, and Denmark, Norway, Sweden and the Netherlands v. Greece, nos. 3321/67 and 3 others, Commission report of 5 November 1969, Yearbook 12, p. 112, § 225), dealt for the first time with a complaint under that Article in some detail in Kamma v. the Netherlands (no. 4771/71, Commission report of 14 July 1974, Decisions and Reports (DR) 1, p. 4). Mr Kamma had been detained on extortion charges, and the police had used his period in custody to question him about his alleged involvement in a murder. The Commission established two points which the Court has since confirmed (see paragraph 271 below): (a) although Article 18 cannot apply alone, it can be breached even if there is no violation of the Article in conjunction with which it is applied, and (b) it can only be contravened if the Convention right which has been interfered with is subject to restrictions – that is, is qualified rather than absolute. The Commission found no breach, saying that the police had been entitled to proceed as they had, and that the detention had not prejudiced Mr Kamma’s position in the murder case (ibid., pp. 10 ‑ 12). 266. In later cases the Commission dealt with such complaints in a more summary manner, dismissing them as manifestly ill-founded or on the merits for lack of proof (see, for instance, X v. the Netherlands, no. 5763/72, Commission decision of 18 December 1973, Collection 45, p. 76, at pp. 83-84; X and Y v. the Netherlands, no. 6202/73, Commission decision of 16 March 1975, DR 1, p. 66, at p. 71; Handyside v. the United Kingdom, no. 5493/72, Commission report of 30 September 1975, Series B no. 22, p. 52, §§ 174-75; McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, DR 20, p. 44, at p. 102, § 133; Bozano v. Italy, no. 9991/82, Commission decision of 12 July 1984, DR 39, p. 147, at p. 157; and Bozano v. Switzerland, no. 9009/80, Commission decision of 12 July 1984, DR 39, p. 58, at p. 70). 267. Article 18 was given more attention in some Commission reports. For instance, in Engel and Others v. the Netherlands (nos. 5100/71 and 4 others, Commission report of 19 July 1974, Series B no. 20, p. 86, §§ 191-92) the Commission found that (a) the choice of disciplinary over criminal proceedings had not engaged Article 18 as it had not restricted the applicants’ rights under the Convention, and that (b) the presence of a legitimate aim for an interference meant that no ulterior purpose under Article 18 could be made out. In Times Newspapers Ltd and Others v. the United Kingdom (no. 6538/74, Commission report of 18 May 1977, Series B no. 28, p. 77, §§ 263-65) in response to a submission that a side ‑ effect of the interference could result in a breach of Article 18, the Commission said that there was no indication that the authorities had pursued any purpose different from the stated one, which it had already accepted as legitimate. (ii) The Court’s rulings prior to 2004 268. Until 2004 the Court had not found a separate breach of Article 18 or given more than very brief reasons for its findings in relation to that Article. In all cases which it examined on the merits and in which a complaint had been made under Article 18, the Court either found no need to deal with the complaint or dismissed it summarily by reference to its rulings under the substantive Articles in conjunction with which Article 18 had been pleaded – often because the parties had either not pursued the point at all or had done so with insufficient specificity (see, among others, Engel and Others v. the Netherlands, 8 June 1976, §§ 93 and 104, Series A no. 22; Handyside v. the United Kingdom, 7 December 1976, § 64, Series A no. 24; The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 75, Series A no. 30; Sporrong and Lönnroth v. Sweden, 23 September 1982, § 76, Series A no. 52; De Jong, Baljet and Van den Brink, cited above, § 63; Bozano v. France, 18 December 1986, § 61, Series A no. 111; Akdivar and Others v. Turkey, 16 September 1996, § 99, Reports 1996-IV; Lukanov, cited above, § 49; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 62, Reports 1998-I; Beyeler v. Italy [GC], no. 33202/96, § 129, ECHR 2000-I; Timurtaş v. Turkey, no. 23531/94, § 118, ECHR 2000-VI; Cyprus v. Turkey [GC], no. 25781/94, § 206, ECHR 2001-IV; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, § 137, ECHR 2003-II; and Tahsin Acar v. Turkey [GC], no. 26307/95, § 247, ECHR 2004-III). 269. Parallel to that, in its first ever judgment on the merits of a case and a number of subsequent ones, the Court used Article 18 as an aid to interpretation of the restriction clauses of other provisions of the Convention or its Protocols (see Lawless v. Ireland (no. 3), 1 July 1961, p. 59, § 38, Series A no. 3 (Article 15); De Wilde, Ooms and Versyp, cited above, § 93 (Article 8 § 2); Winterwerp, cited above, § 39 (Article 5 § 1); Guzzardi, cited above, § 102 (Article 5 § 1); Ashingdane, cited above, § 44 (Article 5 § 1); Lingens v. Austria, 8 July 1986, § 36, Series A no. 103 (Article 10 § 2); Gillow v. the United Kingdom, 24 November 1986, § 54, Series A no. 109 (Article 8 § 2); Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114 (Article 5 § 1); Beyeler, cited above, § 111 (Article 1 of Protocol No. 1); Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008 (Article 5 § 1); Kucheruk v. Ukraine, no. 2570/04, § 177, 6 September 2007 (Article 5 § 1); and United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 83, 18 October 2011 (Article 11 § 2)). (iii) The Court’s rulings since 2004 270. The first case in which the Court dealt with a complaint under Article 18 in more detail and found a breach of that provision was Gusinskiy (cited above, §§ 73-78). Mr Gusinskiy, a wealthy businessman who owned a media company, had been charged and placed in pre-trial detention in order to be coerced to sell that company to a State-owned company. 271. In that judgment the Court confirmed two lines of reasoning under Article 18 previously only mentioned in Commission decisions and reports and Court admissibility decisions (see Kamma, at p. 9; Bozano v. France, at p. 141; and Bozano v. Italy, at p. 157, all cited above, and E.O. and V.P. v. Slovakia (dec.), nos. 56193/00 and 57581/00, 16 September 2003, and Oates v. Poland (dec.), no. 35036/97, 11 May 2000). The first was that Article 18 could only be applied in conjunction with another Article of the Convention, but could be breached even if there was no breach of that other Article taken alone. The second was that a breach could only arise if the right at issue was qualified, that is, subject to restrictions permitted under the Convention (see Gusinskiy, cited above, § 73). 272. The Court did not, however, clarify two other important points. First, it did not explain what proof would be required to sustain an allegation that a restriction had been applied for an ulterior purpose. In Gusinskiy itself, direct proof flowed from a written agreement, endorsed by a government minister, linking the dropping of the charges against Mr Gusinskiy to the sale of his company, and from the terms of the decision discontinuing the criminal proceedings against him, which referred to that agreement; also, the respondent Government had not sought to deny that link (ibid., § 75). Secondly, the judgment did not clearly explain what the position was when, as had happened in that case, and as often happens in practice, there was a plurality of purposes, that is, when a restriction pursued both a purpose prescribed by the Convention and an ulterior one; it merely stated that since Mr Gusinskiy’s right to liberty had been restricted not only for the purpose prescribed under Article 5 § 1 (c) of the Convention but also for other reasons, there had been a breach of Article 18 (ibid., §§ 77-78). 273. Even after that judgment the Court has on a number of occasions dismissed or declined to examine complaints under Article 18 without giving detailed reasons, as it had done before 2004 (see, among others, Öcalan v. Turkey [GC], no. 46221/99, § 206, ECHR 2005-IV; Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 129, ECHR 2007-I; Nemtsov v. Russia, no. 1774/11, §§ 129-30, 31 July 2014; Navalnyy and Yashin v. Russia, no. 76204/11, § 116-17, 4 December 2014; Frumkin v. Russia, no. 74568/12, §§ 172-73, ECHR 2016 (extracts); Kasparov v. Russia, no. 53659/07, §§ 73-74, 11 October 2016; and Kasparov and Others v. Russia (no. 2), no. 51988/07, § 55, 13 December 2016). 274. The Court reverted to a more detailed analysis of a complaint under Article 18 in 2007 when, in Cebotari v. Moldova (no. 35615/06, §§ 49-53, 13 November 2007), it found that the head of a State-owned company had been placed in pre-trial detention on fabricated charges in order to pressure him with a view to hindering a private company with which he was linked from pursuing its application to the Court. The Court based that finding on the fact that the materials in the case could not lead an objective observer reasonably to believe that Mr Cebotari could have committed the offence in relation to which he had been detained, although it was also influenced by the context of the case (ibid., §§ 52-53). 275. The next case in which the Court dealt in detail with a complaint under Article 18 was Khodorkovskiy (cited above). Mr Khodorkovskiy, a wealthy businessman who was also active in politics, complained that the real aims of a criminal case against him and his related pre-trial detention were to take him out of the public arena and enable the State to appropriate the assets of his company, Yukos, one of the biggest oil producers in Russia (ibid., §§ 249 and 251). The Court found no breach of Article 18. It started from the general assumption that the High Contracting States’ authorities acted in good faith, and held that it could only be rebutted if applicants “convincingly show[ed] that the real aim of the authorities [had] not [been] the same as that proclaimed (or as [could] be reasonably inferred from the context)” (ibid., § 255). In relation to such allegations, the Court “applie[d] a very exacting standard of proof”, and the burden of proof remained on the applicant throughout the proceedings (ibid., § 256). The Court then found that the authorities’ perception of Mr Khodorkovskiy as a serious political opponent and the benefit accruing to a State-owned company as a result of Yukos’s demise were not enough to establish a breach of Article 18 because the criminal prosecution of anyone with such a high profile would benefit his opponents, and because the charges against Mr Khodorkovskiy had been genuine (ibid., §§ 257-58). The opinions of others – political institutions, non-governmental organisations or public figures – regarding the political motivation behind the case against him were not evidence in the legal sense (ibid., § 259). The rulings of courts which had refused to extradite associates of his to Russia, or had denied legal assistance to, issued injunctions against, or made awards against the Russian authorities in Yukos-related cases, although a strong argument, were not sufficient because the evidence and arguments before those courts could have differed from those before the Court, and because, in any event, the standard of proof applied by the Court in cases under Article 18 was very high and could be different from those applied domestically. The claim that the authorities had acted in bad faith throughout the entire criminal proceedings required “incontrovertible and direct proof”, which, in contrast to Gusinskiy, was lacking (ibid., § 260). 276. In the related case of OAO Neftyanaya Kompaniya Yukos v. Russia (no. 14902/04, §§ 663-66, 20 September 2011), which concerned related tax proceedings leading to Yukos’s demise, the Court likewise found no breach of Article 18. It again held that such finding could only be based on “incontrovertible and direct proof” adduced by the applicant (ibid., § 663). With reference to its conclusions regarding Yukos’s substantive complaints, it found that the authorities had legitimately acted to counter tax evasion and that it was for the applicant company to show that in doing so they had had an improper purpose (ibid., § 664). As in Khodorkovskiy, the Court held that the opinions of others on the political reasons behind the case against Yukos were of little evidentiary value for the purposes of Article 18. Since there was no evidence of further defects in the tax proceedings, it could not conclude that the authorities had misused them to destroy Yukos and take control of its assets (ibid., § 665). 277. During the next two years the Court dealt with complaints under Article 18 in Lutsenko (cited above) and Tymoshenko (cited above). In neither case did it accept the allegations that the whole criminal cases against the applicants, former government ministers and leaders of opposition parties, had pursued political purposes. It focused instead on specific aspects of those proceedings (see Lutsenko, §§ 104 and 108, and Tymoshenko, § 298, both cited above). In Lutsenko this was the arguments in the investigator’s request to place Mr Lutsenko in pre-trial detention that, by talking to the media, he was trying to distort public opinion, discredit the prosecuting authorities and influence his upcoming trial. For the Court, that showed that the detention had pursued a reason not envisaged by Article 5 § 1 (c) – to punish Mr Lutsenko for publicly disputing the charges against him (see Lutsenko, cited above, §§ 26 and 108-09). In Tymoshenko this was statements in the prosecution’s request to place Ms Tymoshenko in pre-trial detention and in the corresponding court order which showed that the purpose had been to punish her for disrespect towards the court and perceived obstructive conduct during hearings (see Tymoshenko, cited above, §§ 30, 31 and 299). 278. In both of those cases the Court – while reiterating (see respectively §§ 106-07 and 294-95) the applicant’s burden of proof as set out in Khodorkovsky (cited above, §§ 255-56), but not the requirement stated therein of “direct and incontrovertible proof” (ibid. § 260; see paragraph 275 above) – based its findings of a breach of Article 18 on direct written evidence of ulterior purpose, as it had done in Gusinskiy (cited above). The question of plurality of purposes did not arise, as in both cases the Court found that there had been no valid grounds to detain the applicants (see Lutsenko, §§ 63-65 and 67-72, and Tymoshenko, §§ 269-71, both cited above). 279. In the case of Khodorkovskiy and Lebedev (cited above, §§ 897 ‑ 909), which concerned a later phase of the same criminal proceedings as Khodorkovskiy (cited above), the Court confirmed the approach to proof taken in that earlier case. It resisted the applicants’ suggestion that if they provided contextual evidence of ulterior purpose, the burden to prove otherwise should shift to the respondent Government (see Khodorkovskiy and Lebedev, cited above, §§ 899-903). It did not accept that the whole criminal case against the applicants had been for an ulterior purpose, an allegation which the Court described as “sweeping” and contrasted with allegations about specific episodes in such proceedings. Even if there had been a mixed intent behind that case, the ulterior purpose was not fundamental or decisive, as the case concerned serious accusations relating to common criminal offences unrelated to the applicants’ political activities and had a “healthy core” (ibid., §§ 904-08). 280. More recently, in the case of Tchankotadze v. Georgia (no. 15256/05, §§ 114-15, 21 June 2016), the Court found that public threats that the applicant, a high-ranking civil servant, would be “jailed”, uttered by Mr Saakashvili, then a presidential candidate and later elected, were insufficient to find an ulterior purpose behind his prosecution and related pre-trial detention, in the absence of proof that the prosecuting or judicial authorities had themselves been driven by political motives. 281. In two other recent cases, Ilgar Mammadov and Rasul Jafarov (both cited above), the Court – while again emphasising (see respectively §§ 137-38 and 153-54) the applicant’s burden of proof as set out in Khodorkovsky (cited above, §§ 255-56), but not the requirement of “direct and incontrovertible proof” (ibid. § 260; see paragraph 275 above) – found a breach of Article 18 of the Convention, basing itself on contextual evidence of ulterior purpose. The cases concerned the pre-trial detention of, respectively, an opposition politician and blogger critical of the Government, and that of a well-known human-rights activist. In both cases the Court analysed the factual and legal aspects of the charges and found that the detention had not been based on a reasonable suspicion, in breach of Article 5 § 1 (see Ilgar Mammadov, §§ 93-101, and Rasul Jafarov, §§ 121-34, both cited above). In itself, that was not enough to find a breach of Article 18, but proof of ulterior purpose – to silence or punish the applicant in the first case for criticising the authorities and spreading information that they were trying to suppress, and the applicant in the second case for his human-rights activities – derived from a juxtaposition of the lack of suspicion with contextual factors. In the first case, these were a close chronological correlation between the applicant’s blog entries, the authorities’ public statement denouncing them, the charges, and the arrest (see Ilgar Mammadov, cited above, §§ 141-43). In the second case, they were the increasingly harsh regulation of non-governmental organisations and their funding in Azerbaijan, allegations by officials and the pro-government media that activists such as the applicant were a “fifth column”, and the contemporaneous detention of other such activists (see Rasul Jafarov, cited above, §§ 156-62). (b) The need to clarify the case-law 282. The above survey of the case-law under Article 18 of the Convention shows that in the relatively few cases in which the Court has thus far examined complaints under that provision in some detail, it has, since Khodorkovskiy (cited above), started from the general assumption that the national authorities of the High Contracting States have acted in good faith, adding that this assumption can only be rebutted if the applicant convincingly shows that the purpose for which those authorities have restricted his or her rights under the Convention or the Protocols thereto was in reality not the one cited by them and permitted under the Convention. In other words, the Court’s scrutiny in such cases has focused on the issue of proof of bad faith in this regard. 283. But inasmuch as they underscore the exhaustiveness of the purposes for which the rights in the Convention may be restricted, Article 18’s terms (“shall not be applied for any purpose other than ...”) appear capable of allowing a more objective assessment of the presence or absence of an ulterior purpose and thus of a misuse of power (“ détournement de pouvoir ”, as stated in the Convention’s Travaux Préparatoires – see paragraph 154 above). Moreover, an approach that simply focuses on proof of bad faith does not sit well with that taken by the Court with respect to the restriction clauses in the Convention, which Article 18 is intended to complement. For example, in examining whether an interference with the rights guaranteed by Articles 8 to 11 is “necessary in a democratic society” for the pursuit of a legitimate aim, the Court always insists that its supervision is not limited to ascertaining whether the respondent State’s authorities have exercised their discretion reasonably, carefully and in good faith (see, for example, The Sunday Times (no. 1), cited above, § 59; Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130; and Perinçek v. Switzerland [GC], no. 27510/08, § 196 (iii), ECHR 2015 (extracts)). In cases under Article 5 § 1, the authorities’ good faith is likewise only one of the elements showing a lack of arbitrariness (see Saadi, cited above, §§ 69-74). Moreover, although “bad faith” and “ulterior purpose” are related notions, they are not necessarily equivalent in each case. 284. Furthermore, in the cases under Article 18 the Court’s approach to proof has not been entirely consistent, since some, but not all, of the recent judgments have insisted on “direct and incontrovertible proof” of an ulterior purpose (see paragraphs 278 and 281 above). 285. Lastly, and perhaps most importantly, the above survey of the case ‑ law shows that the Court has thus far not clearly separated the question how an ulterior purpose can be made out from the question how a restriction characterised by a plurality of purposes is to be analysed under Article 18 of the Convention. 286. It is thus necessary for the Court to clarify those points and, more generally, to spell out in some detail the manner in which Article 18 is to be interpreted and applied. (c) Interpretation and application of Article 18 of the Convention 287. In a similar way to Article 14, Article 18 of the Convention has no independent existence (see, in relation to Article 14, Marckx v. Belgium, 13 June 1979, § 32, Series A no. 31; Van der Mussele v. Belgium, 23 November 1983, § 43, Series A no. 70; Rasmussen v. Denmark, 28 November 1984, § 29, Series A no. 87; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 71, Series A no. 94; Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV; and Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)); it can only be applied in conjunction with an Article of the Convention or the Protocols thereto which sets out or qualifies the rights and freedoms that the High Contracting Parties have undertaken to secure to those under their jurisdiction (see Kamma, at p. 9; Gusinskiy, § 73; Cebotari, § 49; Khodorkovskiy, § 254; OAO Neftyanaya Kompaniya Yukos, § 663; Lutsenko, § 105; Tymoshenko, § 294; Ilgar Mammadov, § 137; Rasul Jafarov, § 153; and Tchankotadze, § 113, all cited above, all of which expressed the same idea by saying that Article 18 “does not have an autonomous role”). This rule derives both from its wording, which complements that of 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, and from its place in the Convention at the end of Section I, which contains the Articles that define and qualify those rights and freedoms. 288. Article 18 does not, however, serve merely to clarify the scope of those restriction clauses. 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, mutatis mutandis, in relation to Article 14, Rasmussen, § 29; Abdulaziz, Cabales and Balkandali, § 71; Thlimmenos, § 40; and Konstantin Markin, § 124, all cited above). Therefore, as is also the position in regard to Article 14, there can be a breach of Article 18 even if there is no breach of the Article in conjunction with which it applies (see, on that point, Kamma, at p. 9; Gusinskiy, § 73; and Cebotari, § 49, all cited above). 289. Lastly, being aware – as already highlighted – of a certain inconsistency in its previous judgments regarding the use of the terms “independent” and “autonomous” in these contexts, the Court seizes the opportunity offered by the present case to align the language used in relation to Article 18 to that used in relation to Article 14, as has been done above. 290. It further follows from the terms of Article 18 that a breach can only arise if the right or freedom at issue is subject to restrictions permitted under the Convention (see Kamma, at p. 10; Gusinskiy, § 73; Cebotari, § 49; and OAO Neftyanaya Kompaniya Yukos, § 663, all cited above). 291. The mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case (see, mutatis mutandis, in relation to Article 14 of the Convention, Airey v. Ireland, 9 October 1979, § 30, Series A no. 32; Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 89, ECHR 1999-III; Aziz v. Cyprus, no. 69949/01, § 35, ECHR 2004-V; Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII; and Oršuš and Others v. Croatia [GC], no. 15766/03, § 144, ECHR 2010). (i) Plurality of purposes 292. 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. 293. In assessing that point, the Court will begin by taking account of Article 18’s wording and place in the general scheme of the Convention. As already noted, it complements the clauses which provide for restrictions of the rights and freedoms set forth in the Convention. Its wording (“shall not be applied for any purpose other than”) matches closely the wording of those clauses (for example, Article 5 § 1, second sentence: “save in the following cases”; Article 8 § 2: “no interference ... except such as ... is necessary in the interests of”; Article 9 § 2: “be subject only to such limitations as ... are necessary ... in the interests of”; and Article 11 § 2: “No restrictions ... other than such as ... are necessary ... in the interests of”). The similarity is even clearer in the French text (Article 18: “ que dans le but ”; Article 5 § 1: “ sauf dans les cas suivants ”; Article 8 § 2: “ Il ne peut y avoir ingérence ... que pour autant que ”; Article 9 § 2: “ d’autres restrictions que celle qui ”; and Article 11 § 2: “ ne peut faire l’objet d’autres restrictions que celles qui ”). Since the Convention must be interpreted in a way which promotes harmony between its provisions (see, among other authorities, Klass and Others v. Germany, 6 September 1978, § 68, Series A no. 28; Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X; and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 133, ECHR 2016), and since, when using the same terms, its different provisions must normally be taken to refer to the same concept (see Perinçek, cited above, §§ 134 and 146, with further references), in interpreting Article 18 the Court must thus take into account its usual approach to those restriction clauses. 294. The lists of legitimate aims for the pursuit of which Articles 8 to 11 of the Convention permit interferences with the rights guaranteed by them are exhaustive (see Golder, cited above, § 44, and Šneersone and Kampanella v. Italy, no. 14737/09, § 90, 12 July 2011, with regard to Article 8 § 2; S.A.S. v. France [GC], no. 43835/11, § 113, ECHR 2014 (extracts), with regard to Article 9 § 2; The Sunday Times (no. 1), cited above, § 65, with regard to Article 10 § 2; and Sidiropoulos and Others v. Greece, 10 July 1998, § 38, Reports 1998-IV, with regard to Article 11 § 2; see also, generally in relation to Articles 8 to 11, Ždanoka v. Latvia [GC], no. 58278/00, § 115 (b), ECHR 2006-IV; Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109 (iii), ECHR 2008; and Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 64, ECHR 2012). 295. Yet, in cases under those provisions – as well as under Articles 1, 2 and 3 of Protocol No. 1, or Article 2 §§ 3 and 4 of Protocol No. 4 – respondent Governments normally have a relatively easy task in persuading the Court that the interference pursued a legitimate aim, even when the applicants cogently argue that it actually pursued an unavowed ulterior purpose (see, for example, Weber v. Switzerland, 22 May 1990, §§ 44-45, Series A no. 177; Informationsverein Lentia and Others v. Austria, 24 November 1993, §§ 31 and 33, Series A no. 276; Federation of Offshore Workers’ Trade Unions v. Norway (dec.), no. 38190/97, ECHR 2002-VI; and United Macedonian Organisation Ilinden-PIRIN and Others (no. 2), cited above, §§ 85-90). 296. The cases in which the Court has voiced doubts about the cited aim without ruling on the issue (see, for example, Kandzhov, cited above, § 73; Tănase v. Moldova [GC], no. 7/08, §§ 164-70, ECHR 2010; Bayatyan v. Armenia [GC], no. 23459/03, § 117, ECHR 2011; and Stamose v. Bulgaria, no. 29713/05, § 32, ECHR 2012), left the issue open (see, for example, Christian Democratic People’s Party v. Moldova, no. 28793/02, § 54, ECHR 2006-II; Christian Democratic People’s Party v. Moldova (no. 2), no. 25196/04, § 19, 2 February 2010; and Alekseyev v. Russia, nos. 4916/07 and 2 others, § 69, 21 October 2010), or has rejected one or more of the cited aims (see, for example, Sidiropoulos and Others, cited above, §§ 37-38; Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 31, 25 January 2007; Stoll v. Switzerland [GC], no. 69698/01, §§ 54-55, ECHR 2007-V; S.A.S. v. France, cited above, §§ 118-20; and Perinçek, cited above, §§ 146-54), are few and far between. The cases in which it has found a breach of the respective Article purely owing to the lack of a legitimate aim are rarer still (see Khuzhin and Others v. Russia, no. 13470/02, §§ 117-18, 23 October 2008; Nolan and K. v. Russia, no. 2512/04, §§ 73-74, 12 February 2009; P. and S. v. Poland, no. 57375/08, § 133, 30 October 2012; and Karajanov v. the former Yugoslav Republic of Macedonia, no. 2229/15, §§ 75-77, 6 April 2017), although in a recent case the Grand Chamber found an absence of legitimate aim and yet went on to examine whether the interference had been necessary (see Baka v. Hungary [GC], no. 20261/12, §§ 156-57, ECHR 2016). 297. The Court has indeed itself recognised that in most cases it deals with the point summarily (see S.A.S. v. France, cited above, § 114). Even when it excludes some of the cited aims, if it accepts that an interference pursues at least one, it does not delve further into the question and goes on to assess whether it was necessary in a democratic society to attain that aim (see, for example, Open Door and Dublin Well Woman v. Ireland, 29 October 1992, §§ 61-63, Series A no. 246-A; Sidiropoulos and Others, cited above, §§ 39-47; Nikula v. Finland, no. 31611/96, § 38, ECHR 2002-II; Vereinigung Bildender Künstler, cited above, §§ 29 and 32-39; Stoll, cited above, §§ 56-62 and 101-62; A.A. v. the United Kingdom, no. 8000/08, §§ 52-71, 20 September 2011; and Perinçek, cited above, §§ 155-57 and 196-281). 298. The list of situations in which Article 5 § 1 of the Convention permits deprivation of liberty is likewise exhaustive (see Engel and Others, cited above, § 57; Ireland v. the United Kingdom, 18 January 1978, § 194, Series A no. 25; Winterwerp, cited above § 37; and Saadi, cited above, § 43), except when it is being applied, in the context of an international armed conflict, to the detention of prisoners of war or of civilians who pose a threat to security (see Hassan v. the United Kingdom [GC], no. 29750/09, § 104, ECHR 2014). If a given instance of deprivation of liberty does not fit within the confines of one of the sub-paragraphs of that provision, as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 171, ECHR 2009, and Baisuev and Anzorov v. Georgia, no. 39804/04, § 60, 18 December 2012). 299. Though only sub-paragraphs (c) and (d) refer to the “purpose” of the types of deprivation of liberty which they cover, it is clear from their wording and the overall structure of Article 5 § 1 that this requirement is implicit in all sub-paragraphs. While that is a point which the Court checks in each case (see Stoichkov v. Bulgaria, no. 9808/02, § 52, 24 March 2005, in relation to sub-paragraph (a); Gatt v. Malta, no. 28221/08, §§ 42 and 48, ECHR 2010; Ostendorf v. Germany, no. 15598/08, § 97, 7 March 2013; and Baisuev and Anzorov, cited above, §§ 57-58, in relation to sub ‑ paragraph (b); Engel and Others, cited above, § 69, and the judgments cited in paragraph 185 above in relation to sub-paragraph (c); Bouamar v. Belgium, 29 February 1988, § 50, Series A no. 129, in relation to sub ‑ paragraph (d); Ashingdane, cited above, § 48, and Enhorn v. Sweden, no. 56529/00, § 35, ECHR 2005-I, in relation to sub-paragraph (e); and Chahal v. the United Kingdom, 15 November 1996, § 112, Reports 1996-V, and Saadi, cited above, §§ 77 and 79, in relation to sub-paragraph (f)), it usually does not neatly separate it from the other elements affecting the compatibility of the detention with Article 5 § 1. 300. Moreover, in such cases, if the Court is satisfied that the detention was for a purpose authorised under one sub-paragraph, it normally stops there, without checking whether it also pursued another aim (see, for example, Winterwerp, § 42 in fine; Brogan and Others, § 53; and K.-F. v. Germany, § 62, all cited above). Also, a single sub-paragraph is sufficient to legitimise the detention: when the respondent Government plead several, the Court examines each plea individually, on the understanding that it is sufficient for the detention to fall under one sub-paragraph to be compatible with Article 5 § 1 (see, for example, Engel and Others, §§ 67-69; Ciulla, §§ 35-40; Gatt, §§ 36 and 44-45; and Ostendorf, §§ 48, 76 and 89, all cited above). 301. On the other hand, if there is some manifest irregularity which, seen in context, shows that a deprivation of liberty was chiefly meant for an ulterior purpose – the applicants are detained on vague or fabricated charges to prevent or punish their participation in rallies (see Shimovolos v. Russia, no. 30194/09, §§ 52-57, 21 June 2011; Hakobyan and Others v. Armenia, no. 34320/04, § 123, 10 April 2012; Nemtsov, cited above, § 103; Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 107-08, 15 October 2015; Kasparov, cited above, §§ 50-56; Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 146-47, 11 February 2016; and Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 126-27, 11 February 2016); or the authorities manipulate procedures to prolong the detention for the same purpose (see Navalnyy and Yashin, cited above, §§ 92-95), or to delay having to obtain judicial authorisation for the detention, as required under domestic law (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 86-88, 24 June 2010), or to proceed with a disguised extradition (see Bozano v. France, cited above, §§ 59-60; Nowak v. Ukraine, no. 60846/10, § 58, 31 March 2011; Azimov v. Russia, no. 67474/11, §§ 163 and 165, 18 April 2013; and Eshonkulov v. Russia, no. 68900/13, § 65, 15 January 2015); or the applicant is illegally abducted and surrendered to another State (see Iskandarov v. Russia, no. 17185/05, §§ 109-15 and 148-51, 23 September 2010); or the citizens of another State are indiscriminately arrested with a view to being deported en masse as a measure of reprisal (see Georgia v. Russia (I) [GC], no. 13255/07, §§ 185-86, ECHR 2014 (extracts)) – the Court finds an absence of a legitimate ground for the deprivation of liberty and accordingly a breach of Article 5 § 1. 302. That overview shows that although the legitimate aims and grounds set out in the restriction clauses in the Convention are exhaustive, they are also broadly defined and have been interpreted with a degree of flexibility. The real focus of the Court’s scrutiny has rather been on the ensuing and closely connected issue: whether the restriction is necessary or justified, that is, based on relevant and sufficient reasons and proportionate to the pursuit of the aims or grounds for which it is authorised. Those aims and grounds are the benchmarks against which necessity or justification is measured (see The Sunday Times (no. 1), cited above, § 59). 303. That manner of proceeding should guide the Court in its approach to the interpretation and application of Article 18 of the Convention in relation to situations in which a restriction pursues more than one purpose. Some of those purposes may be capable of being brought within the respective restriction clause, while others are not. In such situations, the mere presence of a purpose which does not fall within the respective restriction clause cannot of itself give rise to a breach of Article 18. 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. 304. 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. 305. 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. 306. This interpretation is consistent with the case-law of the Contracting States’ national courts and of the Court of Justice of the European Union (see paragraphs 156 and 168 above), which the Court can take into account when construing the Convention (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 76-77, ECHR 2008, and Opuz v. Turkey, no. 33401/02, §§ 184-90, ECHR 2009). That is especially appropriate in this case, since the preparatory works to the Convention clearly show that Article 18 was meant to be its version of the administrative-law notion of misuse of power (see paragraph 154 above). 307. 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. 308. In continuing situations, it cannot be excluded that the assessment of which purpose was predominant may vary over time. (ii) Questions of proof 309. A perusal of the judgments cited in paragraphs 275, 276 and 279 above in the light of the above clarifications shows that what the Court really meant when it spoke of a stricter standard of proof under Article 18 was that it considered that a purpose prescribed by the Convention was invariably a cover for an ulterior one. But if the two points are clearly distinguished, the questions in relation to proof become simply how it can be established whether there was an ulterior purpose and whether it was the predominant one. 310. In doing this, the Court finds that it can and should adhere to its usual approach to proof rather than special rules (contrast the judgments cited in paragraphs 275 and 278 above, and see paragraph 316 below). 311. The first aspect of that approach, first set out in Ireland v. the United Kingdom (cited above, §§ 160-61) and more recently confirmed in Cyprus v. Turkey (cited above, §§ 112-13 and 115) and in Georgia v. Russia (I) (cited above, §§ 93 and 95), 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. As early as in Artico v. Italy (13 May 1980, § 30, Series A no. 37) the Court stated that that was the general position not only in inter-State cases but also in cases deriving from individual applications. It has since then relied on the concept of burden of proof in certain particular contexts. On a number of occasions, it has recognised that a strict application of the principle affirmanti incumbit probatio, that is that the burden of proof in relation to an allegation lies on the party which makes it, is not possible, notably in instances when this has been justified by the specific evidentiary difficulties faced by the applicants (see, for example, Akdivar and Others, cited above, § 68, in relation to the exhaustion of domestic remedies; Baka, cited above, §§ 143 in fine and 149, and the examples cited therein, in relation to various substantive Articles of the Convention; and J.K. and Others v. Sweden [GC], no. 59166/12, §§ 91-98, ECHR 2016, in relation to the risk of ill-treatment in the destination country in removal cases under Article 3 of the Convention). 312. Indeed, although it relies on the evidence which the parties adduce spontaneously, the Court routinely of its own motion asks applicants or respondent Governments to provide material which can corroborate or refute the allegations made before it. If the respondent Government in question do not heed such a request, the Court cannot force them to comply with it, but can – if they do not duly account for their failure or refusal – draw inferences (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 202, ECHR 2013, with further references). It can also combine such inferences with contextual factors. Rule 44C § 1 of the Rules of Court gives it considerable leeway on that point. 313. The possibility for the Court to draw inferences from the respondent Government’s conduct in the proceedings before it is especially pertinent in situations – for instance those concerning people in the custody of the authorities – in which the respondent State alone has access to information capable of corroborating or refuting the applicant’s allegations (see, among other authorities, Timurtaş, cited above, § 66; Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003-V (extracts); and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 152, ECHR 2012). That possibility is likely to be of particular relevance in relation to allegations of ulterior purpose. 314. 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 Court has consistently reiterated those points (see, among other authorities, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII; El-Masri, cited above, § 151; and Hassan, cited above, § 48). 315. The third aspect of the Court’s approach, also set out as early as in Ireland v. the United Kingdom (cited above, § 210), 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. In Nachova and Others (cited above, § 147), the Court further clarified that point, saying that when assessing evidence it is not bound by formulae and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. It has also stated that it is sensitive to any potential evidentiary difficulties encountered by a party. The Court has consistently adhered to that position, applying it to complaints under various Articles of the Convention (see Baka, cited above, § 143, with further references). 316. There is therefore 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. 317. It must however be emphasised that 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 (see Ilgar Mammadov, § 142, and Rasul Jafarov, § 158, both cited above). 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 (see Baka, cited above, § 148). (d) Application of the above approach 318. The Court has already found that the applicant’s arrest and pre-trial detention were carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention (see paragraphs 188 and 206 above). It has not been argued that those measures constituted a restriction of any other rights of the applicant under the Convention. It follows that, even if it is established that the restriction of his right to liberty also pursued a purpose not prescribed by Article 5 § 1 (c), there will only be a breach of Article 18 if that other purpose was predominant. 319. The Court must thus determine whether that was so with respect to each of the two purposes cited by the applicant. (i) The allegation that the applicant’s arrest and pre-trial detention were meant to remove him from the political scene 320. In view of the context in Georgia between 2012 and 2014, the timing of the applicant’s arrest and pre-trial detention, and the nature of the offences with which he was charged, it is understandable that there was a degree of suspicion that there was a political impetus behind the charges, even though the charges themselves were not overtly political. It is also true that, when it comes to allegations of ulterior purpose behind a criminal prosecution, it is hard to divorce the pre-trial detention from the criminal proceedings (see Lutsenko, § 108; Tymoshenko, § 298; and Tchankotadze, § 114, all cited above). Yet, there is no right as such under the Convention not to be criminally prosecuted (see I.J.L. and Others v. the United Kingdom, nos. 29522/95 and 2 others, § 101, ECHR 2000-IX; Patsuria v. Georgia, no. 30779/04, § 42, 6 November 2007; Mustafa (Abu Hamza) v. the United Kingdom (dec.), no. 31411/07, § 34, 18 January 2011; and International Bank for Commerce and Development AD and Others v. Bulgaria, no. 7031/05, § 129, 2 June 2016, as well as, mutatis mutandis, Artner v. Austria, 28 August 1992, § 21, Series A no. 242-A). The Court is thus chiefly concerned with the purpose underlying the pre-trial detention ordered by the Kutaisi City Court on 22 May 2013 and extended on 25 September and 7 October 2013. 321. The Court must therefore assess whether the factors which, according to the applicant, showed that that detention was principally meant to remove him from Georgia’s political scene are sufficient, considered alone or together, to establish that. 322. The factors deriving from the broader political context in which the criminal case was brought against the applicant are not sufficient proof in that respect. 323. Although the criminal prosecutions against a number of former ministers and other high officials from UNM could suggest a wish to eliminate or harm that party, they could equally reflect a desire to deal with alleged wrongdoings under a previous government whose members could not be held to account while in power. The mere fact that a politician is criminally prosecuted, even during an electoral campaign, is not automatically in breach of his or her right to run for office (see Uspaskich v. Lithuania, no. 14737/08, §§ 90-100, 20 December 2016). But more importantly, those prosecutions cannot in themselves lead to the conclusion that the courts which dealt with the question whether or not to place and keep the applicant in pre-trial detention were driven by such a purpose. 324. The same goes for the statements about the criminal cases against UNM figures by officials from the Georgian Dream Government (see paragraph 127 above, and compare with Tchankotadze, cited above, § 114). Such statements can only be seen as proof of ulterior purpose behind a judicial decision if there is evidence that the courts were not sufficiently independent from the executive authorities. No such evidence has been put forward in this case. On the contrary, it appears that in many cases against former UNM officials – including the case against the applicant’s co ‑ accused, Mr Z.T. – the courts turned down the prosecution’s requests to impose pre-trial detention, and that, as of September 2013, fourteen out of the thirty-five former high officials from UNM who had been charged with criminal offences were in pre-trial detention and fourteen others had been released on bail (see paragraphs 39, 131 and 134 above). Lastly, it should be noted that the Constitutional Court ruled in a manner favourable to Mr G.U. (see paragraph 150 above). 325. The manner in which the criminal proceedings against the applicant were conducted does not reveal a predominantly political purpose behind his pre-trial detention either. 326. The large number of witnesses whom the prosecution wished to call did not unduly prolong the trial and the applicant’s pre-trial detention. The trial started on 7 October 2013 and ended with the applicant’s conviction four months and eleven days later, on 17 February 2014, just before the expiry of the maximum period of nine months for which he could be kept in pre-trial detention (see paragraphs 50, 53 and 148 above). In the circumstances, that can hardly be regarded as an unreasonable amount of time. 327. The applicant insisted that the proceedings’ taking place in Kutaisi rather than Tbilisi suggested forum shopping by the prosecuting authorities, and thus an ulterior purpose. But, without going into the question whether that was in line with the Georgian rules of criminal procedure – a point not discussed by either party in their observations – the Court is not persuaded that this was redolent of forum shopping, for two reasons. First, although it placed the applicant in pre-trial detention, the Kutaisi City Court ordered the release on bail of his co-accused, Mr Z.T., who was also a prominent UNM figure. Secondly, on 30 May 2013, just eight days after that decision, the Tbilisi City Court also placed the applicant in pre-trial detention in relation to separate charges brought against him on 28 May 2013 (see paragraph 56 above). 328. It is true that four months later, during the pre-trial conference hearing on 25 September 2013, the Kutaisi City Court did not give any reasons for its decision to reject the applicant’s request for release, and that it did not properly examine his further request for release on 7 October 2013 (see paragraphs 49 and 51 above). But those shortcomings, while inconsistent with the requirements of Article 5 § 3 of the Convention (see paragraphs 233 and 234 above), are not in themselves proof of a political purpose behind that court’s decisions. 329. In sum, although the applicant’s pre-trial detention took place against the backdrop of bitter political antagonism between UNM and Georgian Dream, the various points cited by him, between which there is a degree of overlap, are not sufficient to show that the predominant purpose of that detention was to hinder his participation in Georgian politics rather than to ensure the proper conduct of the criminal proceedings against him. 330. It is true that courts in France, Greece and the United Kingdom turned down requests by the Georgian authorities for the extradition of two high-ranking former officials from UNM on the basis, inter alia, that the criminal prosecutions against them were politically motivated (see paragraphs 138-140 above). But, as noted in Khodorkovskiy (cited above, § 260), that does not necessarily determine the Court’s assessment of that point, for two reasons. First, the facts of the cases examined by those courts, while connected with those of the case before the Court owing to the fact that those cases also concerned allegations against other prominent UNM figures, were not identical. Secondly, the extradition courts were in essence assessing a future risk, whereas the Court is concerned with past facts; that colours their respective assessment of inconclusive contextual evidence. 331. The same considerations apply to the decisions of Interpol in relation to Mr Saakashvili and Mr D.K. (see paragraph 142 above). 332. In view of the foregoing, the Court does not find it established that the applicant’s pre-trial detention was chiefly meant to remove him from Georgia’s political scene. (ii) The allegation that in December 2013 the authorities attempted to use the applicant’s pre-trial detention as leverage to obtain information from him (α) Whether the allegation can be regarded as proven 333. The applicant’s allegations about his covert removal from his prison cell on 14 December 2013 were fully disputed by the Government. In such cases the Court is inevitably confronted with the same difficulties as those faced by a first-instance court (see El-Masri, cited above, § 151). It is sensitive to its subsidiary role and recognises that it must be cautious in taking on the role of a primary finder of fact. Yet, when faced with allegations of such a serious nature as those made by the applicant, who at the relevant time was in the authorities’ custody, it must apply a particularly thorough scrutiny, even if – as here – domestic investigations have taken place. In doing so, the Court may take into account the quality of those investigations and any possible flaws in the decision-making process (ibid., § 155). 334. The first point that needs to be emphasised is that the applicant’s account of the way in which he was covertly taken out of Prison no. 9 and to the meeting with the Chief Public Prosecutor was, as highlighted by the Chamber, detailed and specific, and remained consistent throughout (see paragraphs 60-63, 81 and 99 above, and, mutatis mutandis, El-Masri, cited above, § 156). The fact that the applicant only voiced his allegations three days after the said meeting does not weaken their credibility. Even assuming that he could have done so earlier, it is not surprising that, being in custody, he chose to make them in a way designed to achieve maximum publicity. The alleged meeting took place in the early hours on a Saturday and the applicant spoke publicly about it at the next public hearing in his case, which was the following Tuesday. 335. It is true that there is no direct evidence in support of his account. But it must be acknowledged that the applicant, who was in the custody of the authorities, was hardly in a position to provide such evidence. There are, however, several indirect elements which tend to corroborate his assertions. 336. First, there is some evidence that at the relevant time the authorities were pressuring other senior UNM figures to give evidence against their former colleagues (see paragraph 141 above). 337. Secondly, two witnesses interviewed during the investigation by the Chief Public Prosecutor’s Office, Mr G.Ts. and Mr I.P., stated that they had on several separate occasions heard Mr G.G., who was head of the special forces of the Ministry of Prisons at the relevant time, say that he had been one of those transporting the applicant to the meeting with the Chief Public Prosecutor (see paragraphs 108 and 109 above). It is true that Mr G.Ts.’s and Mr I.P.’s statements are hearsay and that their reliability may be open to question in view, in particular, of the positions of subordination to the applicant that the two of them had previously held (see paragraph 96 above). But in Mr G.Ts.’s case that factor was somewhat offset by the fact that the applicant had dismissed him from his post and had caused him to be detained (see paragraph 108 in fine above). Moreover, when seen against the backdrop of the fact that in December 2013 Mr G.G. was paid an extraordinarily high bonus, apparently on the basis of the decision of another official alleged to have played a central role in the events on 14 December 2013, Mr D.D. (see paragraph 93 above), Mr G.Ts.’s and Mr I.P.’s statements cannot be dismissed out of hand, even if such bonuses were also paid to other prison officials. The authorities do not appear to have attempted to verify those statements by objective means, for example by obtaining the video recording from the pre-trial hearing during which Mr G.G. was said to have spoken about his role in the events of 14 December 2013, or third-party evidence about Mr G.G.’s whereabouts in the early hours of 14 December 2013. They instead focused their efforts on interviewing Mr G.G., Mr I.M. (the other special-forces officer with whom he was alleged to have acted in concert), and their former colleagues in the special forces of the Ministry of Internal Affairs, with whom they had shared a cell in Prison no. 9 (see paragraphs 110 and 111 above). The fact that they denied their involvement during those interviews is hardly surprising. 338. Lastly, in May 2014 Ms L.M., a senior official at the Penitentiary Department, twice stated in interviews to the media that the applicant had been taken to a meeting with the Chief Public Prosecutor, and was shortly after that dismissed from her post by her superior, Mr D.D., who was also directly concerned by those allegations (see paragraph 95 above). Although she retracted her statements when questioned in relation to them during the ensuing criminal investigation, she does not appear to have provided a credible explanation for the discrepancy (see paragraph 117 above). 339. Further evidence in support of the applicant’s account is the statement of Mr K.T., who at the relevant time was detained in a cell in the applicant’s wing in Prison no. 9 (see paragraph 112 above). The Court is unable to place reliance on that statement however. Its reliability is somewhat weakened by Mr K.T.’s previous position of subordination to the applicant, and much further still by the fact that a physical examination carried out by the investigators showed that the prison corridor could not be observed from Mr K.T.’s cell because there was no gap in the door, by Mr K.T.’s reluctance to take part in the ensuing experiment which was supposed to test that point, and by the conflicting statements of all Mr K.T.’s cellmates (see paragraphs 113-115 above). 340. There were, on the other hand, several parts of the applicant’s account that lent themselves to verification of his allegations by objective means. Those leads were not explored however. For instance, no attempt was made to check whether the applicant could recognise Mr G.G. or Mr I.M., even though both of them were alleged by Mr G.Ts. and Mr I.P. to have been among those who had transported him from Prison no. 9 to the Penitentiary Department and the applicant stated that he would be able to recognise two of the men who had transported him (see paragraphs 81, 99, 108 and 109 above). Also, no attempt appears to have been made to check Mr G.G.’s and Mr I.M.’s mobile telephone records and cell tower data for the early hours of 14 December 2013, even though the applicant alleged that one of the men who had been in the car with him had had two mobile telephone conversations (see paragraph 81 above). 341. At the same time, the evidence put forward by the Government in support of their assertion that the applicant had not been removed from his cell and taken to the Chief Public Prosecutor is not sufficiently persuasive. 342. That evidence was gathered during the inquiry by the General Inspectorate of the Ministry of Prisons and the investigation by the Chief Public Prosecutor’s Office. The findings made in the course of those two procedures must, however, be approached with caution. The first took place against a backdrop of firm and immediate denials of the applicant’s allegations by the Prime Minister and the Minister of Prisons on 17 and 18 December 2013 (see paragraphs 68 and 70 above), and was carried out by officials of that Ministry. The second was only opened following the Chamber judgment in this case, and had a clear link with the Government’s request for a referral of the case to the Grand Chamber (see paragraph 97 above). Indeed, it was completed just twenty-five days before the Grand Chamber held its hearing (see paragraphs 7 and 125 above), and the material obtained during that investigation served as a basis for the Government’s submissions to the Grand Chamber. 343. Apart from those general considerations, there are a number of concrete elements which call the Government’s assertions into question. 344. Most importantly, there are several elements casting doubt on their claim that the footage from the surveillance cameras in Prison no. 9 and the Penitentiary Department building – which could have conclusively proved or disproved the applicant’s allegations – was automatically deleted after twenty-four hours. The Minister of Prisons does not appear to have been aware of that when speaking about the case on 18 December 2013 (see paragraph 70 in fine above). The deputy head of the General Inspectorate of the Ministry of Prisons was equally unaware of that when he requested the footage two days later, on 20 December 2013 (see paragraph 73 above). The deputy Minister of Prisons who had been in charge of reforming the surveillance system in Georgia’s prisons two years previously, in 2011, stated that the footage was kept for a month (see paragraph 77 above). Indeed, it is striking that surveillance footage from an establishment as prone to violence and accidents as a prison would be preserved for a shorter time than footage from road-traffic cameras – which was in this case still available twenty days after the alleged incident (see paragraph 84 above). 345. The exact method used to examine the footage from the private surveillance and road-traffic cameras remains unclear, and that footage was not made available to the applicant’s lawyer in spite of his requests (see paragraphs 79, 84, 107, 120 and 121 above). 346. No significant value can be attached to the statements of Mr D.D.’s deputy and those of the governor and deputy governor of Prison no. 9 and the prison officers working there (see paragraphs 82, 85, 86, 100-104, 106 and 116 above). First, both the people who gave the statements and the inspectors and investigators who took them were subordinates of the alleged perpetrators. Secondly, any admission by the statements’ authors of involvement in a covert removal of the applicant from his cell might have resulted in their own conduct being called into question. 347. The same goes for the statements of the former Chief Public Prosecutor, Mr O.P., and the former head of the Penitentiary Department, Mr D.D. (see paragraphs 118 and 119 above). Both of them clearly had a strong incentive to deny the allegations. The credibility of their statements is further weakened by the fact that they did not give them until during the course of the second investigation, in September 2016, nearly three years after the events, as no statements were taken from them during the initial inquiry (see paragraph 88 above). 348. The data showing that between approximately 1 a.m. and 1.25 a.m. on 14 December 2013 Mr O.P. was logged into the prosecuting authorities’ document-management system (see paragraph 124 above), assuming it to be authentic and attesting his presence in his office rather than in the Penitentiary Department building, does not negate the applicant’s allegations, given that the meeting between him and Mr O.P. was said to have taken place twenty to thirty minutes after 1.25 a.m. and that the distance between Mr O.P.’s office and the Penitentiary Department was apparently just a few hundred metres. 349. The Court cannot attach any significance to the absence of entries attesting the applicant’s removal from his cell and Prison no. 9 in the relevant prison logs (see paragraphs 83, 87 and 123 above). In view of the covert nature of the alleged operation, it can hardly be expected that it would have been recorded in any of those logs (see, mutatis mutandis, Al Nashiri v. Poland, no. 28761/11, § 411, 24 July 2014, and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 411, 24 July 2014). 350. In view of the above considerations, the Court considers that it can draw inferences from the available material and the authorities’ conduct, and finds the applicant’s allegations concerning his covert removal from his prison cell sufficiently convincing and therefore proven. (β) Whether the wish to obtain information from the applicant can be regarded as the predominant purpose of the restriction of his right to liberty 351. There is no evidence that until 14 December 2013, nearly seven months after the applicant had been remanded in custody, the authorities had attempted to use his pre-trial detention as a means to pressure him into providing information about Mr Zhvania’s death or Mr Saakashvili’s bank accounts. If the restriction of his right to liberty is thus seen as a whole, it is hard to regard the attempt to use it as a means to obtain such information as its chief purpose. But where the restriction of a Convention right amounts, as here, to a continuous situation, in order for it not to contravene Article 18, its chief purpose must remain the one prescribed by the Convention throughout its duration, and it cannot be excluded that the initial purpose will be supplanted by another one as time goes by (see paragraph 308 above). 352. There are several elements which lead the Court to find that this was so in this case. To begin with, by the time the applicant was pressured to provide information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts, the reasons for keeping him in pre-trial detention appear to have receded, which led the Court to find a breach of Article 5 § 3 of the Convention in relation to the period from 25 September 2013 onwards, which was shortly before the incident of December 2013 (see paragraphs 233-235 above). Then, at that time, December 2013, Mr Saakashvili, who has since then become the target of several criminal investigations, had just left Georgia following the end of his term of office as President (see paragraphs 13 and 126 above). For its part, the investigation into Mr Zhvania’s death, which had been renewed in late 2012, had apparently not made significant progress (see paragraph 61 above). It is clear that both topics were of considerable importance for the authorities. The Government’s statement at the hearing before the Grand Chamber that there was still a “huge question” for the applicant to answer in relation to Mr Zhvania’s death is particularly telling in that regard (see paragraph 61 above). At the same time, the prosecuting authorities had the power to drop all charges against the applicant at any point without judicial control, with the consequence that the courts would have had to discontinue the criminal proceedings against him (see paragraph 153 above), and thus cause him to be released from pre-trial detention, as promised to him by the Chief Public Prosecutor, Mr O.P., if he provided the requested information. The weight which the authorities attached to the matter is also apparent from the way in which the entire incident on 14 December 2013 unfolded and was later commented upon and investigated. The applicant was taken to meet with Mr O.P., who had been appointed to the post three weeks previously (see paragraph 60 above), in a covert and apparently irregular manner, in a clandestine operation carried out in the middle of the night. The authorities’ initial reaction to the applicant’s allegations in that respect was to issue firm denials (see paragraphs 68 and 70 above), and the ensuing inquiry and investigation were, as already noted, marred by a series of omissions from which it can be inferred that the authorities were eager that the matter should not come to light. Thus, the main protagonists, Mr O.P. and Mr D.D., were not interviewed during the inquiry but only in the course of the investigation, in September 2016, nearly three years after the events, and the crucial evidence in the case – the footage from the prison surveillance cameras – was not recovered. 353. Bearing in mind all the circumstances of the case, the Court is satisfied that during the pre-trial detention, which is to be seen as a continuing situation, the predominant purpose of the restriction of the applicant’s liberty changed. While in the beginning it was the investigation of offences based on a reasonable suspicion, later on it became to obtain information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts, as shown by the incident on 14 December 2013. (iii) Conclusion 354. There has therefore been a breach of Article 18 of the Convention taken in conjunction with Article 5 § 1. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 355. 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 356. Before the Chamber, the applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. 357. The Chamber found that the applicant had suffered distress and frustration on account of the breaches of Article 5 § 3 and Article 18 of the Convention, and that those breaches could not be made good solely by its findings. Making its assessment on an equitable basis, it awarded the applicant EUR 4,000 in respect of non-pecuniary damage. 358. In the Grand Chamber proceedings the applicant was advised that his claim under that head remained as originally submitted, and he expressed no wish to amend it. 359. The Government submitted that the applicant’s claim was exorbitant, and noted that in Gusinskiy (cited above, § 84) the Court had held that the finding of a violation constituted sufficient just satisfaction. 360. The Court considers that the applicant must have suffered a certain amount of stress and anxiety as a result of the violations of Article 5 § 3 and Article 18 of the Convention in his case. Deciding on an equitable basis, it awards him EUR 4,000 in respect of that. B. Costs and expenses 1. In the Chamber proceedings 361. Before the Chamber, the applicant claimed 39,390 United States dollars (USD) in respect of Mr Kakhidze’s fees for 202 hours of work on the case, at USD 195 per hour; 4,350 pounds sterling (GBP) in respect of Mr Leach’s fees for 29 hours of work on the case, at GBP 150 per hour; and USD 720 and GBP 90 in respect of translation and clerical expenses in, respectively, Georgia and the United Kingdom. In support of that claim, the applicant submitted time-sheets for Mr Kakhidze and Mr Leach and two schedules of administrative expenses. 362. The Chamber noted that no copies of legal-service contracts, invoices, vouchers or any other supporting financial documents had been submitted. It nevertheless found it reasonable to award EUR 8,000 in respect of Mr Kakhidze’s and Mr Leach’s fees, but rejected the claim in respect of other expenses, citing the absence of any documents in support. 2. The applicant’s claims in the Grand Chamber proceedings 363. Following the referral of the case, the applicant was advised that his claim remained as originally submitted, but that he could amend it to take account of the Grand Chamber proceedings. 364. He sought an additional USD 4,251 in respect of the Mr Kakhidze’s fees for 21.8 of hours of work on the case, at USD 195 per hour, and GBP 10,050 in respect of the fees of Mr Leach and Ms Sawyer, from the European Human Rights Advocacy Centre at Middlesex University (“EHRAC”), for sixty-seven hours of work on the written phase of the Grand Chamber proceedings, at GBP 150 per hour for each of them. In support of that claim, the applicant submitted time-sheets detailing the number of hours spent by Mr Kakhidze, Mr Leach and Ms Sawyer on the case. Mr Kakhidze’s time-sheet mentioned an agreement between his law firm, BGI Legal, and the applicant, according to which payment of the fees would be subject to the Court’s award, and mentioned that EHRAC had joined BGI Legal on the case in December 2014. The agreement itself, however, was not submitted, and neither was an agreement between BGI Legal and EHRAC or the applicant and EHRAC. Mr Leach’s and Ms Sawyer’s time-sheets made no reference to payment arrangements between them and the applicant. 365. The applicant additionally sought GBP 15,375 in respect of Mr Leach’s and Ms Sawyer’s fees for respectively forty-four and a half and fifty-eight hours spent in preparing for the hearing before the Grand Chamber and attending it, at GBP 150 per hour for each of them. The applicant also claimed GBP 150 in respect of five hours of clerical work on the case by an EHRAC officer; GBP 31.61 for stationery; and GBP 584.80 and EUR 333 for Mr Leach’s and Ms Sawyer’s travel and subsistence expenses in connection with their attendance at the hearing. In support of that claim, the applicant submitted time-sheets for Mr Leach and Ms Sawyer, train tickets and taxi receipts for their journey to Strasbourg, hotel invoices for their stay in Strasbourg the night before the hearing, a restaurant receipt for the evening before the hearing, and an invoice for six lever-arch files bought by Middlesex University. The applicant requested that all those items be made payable directly to EHRAC. 3. The Government’s comments on the claims 366. The Government submitted that the applicant had not produced any evidence, such as an agreement between himself and his representatives or receipts, to show that he had actually paid or was legally bound to pay them any fees for their work. The same went for the expenses incurred by the representatives in connection with the case. The claims suggested that some of those items had been borne by EHRAC, and nothing showed that the applicant was under an obligation to reimburse them. 367. With respect to the Chamber proceedings, the Government submitted that there was no proof that Mr Leach had done any work on them. As for Mr Kakhidze, both his hourly rate and the number of hours he was said to have spent on the case were excessive. 368. With respect to the Grand Chamber proceedings, the Government queried the need for the services of more than one representative. They also queried the hourly rates charged by the applicant’s representatives and the number of hours they said they had spent on the case. The Government went on to say that since the authority enabling Ms Sawyer to represent the applicant had only been given on 28 February 2017, all work done by her before that date was to be discounted. 369. With respect to the hearing, the Government queried the need for additional representatives in addition to Mr Kakhidze. They also submitted that the time said to have been spent by Mr Leach and Ms Sawyer on preparing their oral submissions on behalf of the applicant was out of proportion to the limited complexity of the case. In any event, those oral submissions had been largely identical to the written submissions that they had both made previously on behalf of the applicant. They could not therefore justify the large number of hours allegedly spent on preparing them, which was even higher than the number of hours claimed in respect of the written submissions. 4. The Court’s assessment 370. According to the Court’s settled case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, as a recent authority, Buzadji, cited above, § 130). 371. A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Luedicke, Belkacem and Koç v. Germany (Article 50), 10 March 1980, § 15, Series A no. 36; Artico, cited above, § 40; and Airey v. Ireland (Article 50), 6 February 1981, § 13, Series A no. 41). Accordingly, the fees of a representative who has acted free of charge are not actually incurred (see McCann and Others v. the United Kingdom, 27 September 1995, § 221, Series A no. 324). The opposite is the case with respect to the fees of a representative who, without waiving them, has simply taken no steps to pursue their payment or has deferred it (see X v. the United Kingdom (Article 50), 18 October 1982, § 24, Series A no. 55, and Pakelli v. Germany, 25 April 1983, § 47, Series A no. 64). The fees payable to a representative under a conditional-fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (see Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 22, Series A no. 59; Kamasinski, cited above, § 115; Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and 2 others, § 27, 14 May 2002; Pshenichnyy v. Russia, no. 30422/03, § 38, 14 February 2008; Saghatelyan v. Armenia, no. 7984/06, § 62, 20 October 2015; and Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 89, 21 April 2016). 372. In this case the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the fees charged by his Georgian or British representatives or the expenses incurred by them, whether in respect of the Chamber or the Grand Chamber proceedings (see Luedicke, Belkacem and Koç, cited above, § 15; Artico, cited above, § 40; Airey (Article 50), cited above, § 13; and Campbell and Cosans v. the United Kingdom (Article 50), 22 March 1983, § 14 (a), Series A no. 60). In the absence of such documents, the Court is not in a position to assess the points mentioned in the previous paragraph. It therefore finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by him. 373. It follows that the claim must be rejected. C. Default interest 374. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that in particular there had been no violation of Article 5 § 1 of the Convention with regard to the applicant’s arrest or his pre-trial detention and no violation of Article 5 § 3 with regard to his initial placement in pre-trial detention. It held however that there had been a violation of Article 5 § 3 in that, at least from 25 September 2013 onwards, the applicant’s pre-trial detention had ceased to be based on sufficient grounds and that there had been a violation of Article 18 taken in conjunction with Article 5 § 1. In this case, the Court came in particular to the conclusion that it had not been established that the applicant’s pre-trial detention had principally been meant to remove him from Georgia’s political scene. However, it found his allegations concerning his covert removal from his prison cell and his late-night questioning during his pre-trial detention sufficiently convincing and therefore proven. In the applicants’ case, the Court considered that the restriction of his right to liberty had amounted to a continuous situation. It came to the conclusion – bearing in mind all the circumstances – that the predominant purpose of that restriction had changed over time. While in the beginning that purpose had been the investigation of offences based on a reasonable suspicion, later on the predominant purpose became to obtain information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts. It was thus chiefly meant for an ulterior purpose not prescribed by the Convention. |
423 | Challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Asylum Procedures 15. Asylum procedures are regulated by the Immigration Act (“the Act”), Chapter 217 of the Laws of Malta. Article 5 of the Act in so far as relevant reads as follows: “Any person, other than one having the right of entry, or of entry and residence, or of movement or transit ..., may be refused entry, and if he lands or is in Malta without leave from the Principal Immigration Officer, he shall be a prohibited immigrant.” In practice, upon being apprehended, a prohibited immigrant is issued with a removal order, in accordance with Article 14 (2) of the Act, which, in so far as relevant, reads as follows: “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 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 .” 16. An “irregular” immigrant is entitled to apply for recognition of refugee status by means of an application (in the form of a Preliminary Questionnaire) to the Commissioner for refugees within two months of arrival. While the application is being processed, in accordance with a Maltese policy document of 2005 entitled “Irregular Immigrants, Refugees and Integration”, the immigrant will remain in detention, but no immigrant shall be kept in detention for longer than eighteen months. Length of detention may depend on the immigrant's will to cooperate in respect of his or her repatriation. However, the Immigration Act does not define a limit to the period of detention. Article 10 of Legal Notice 320 of 2005, transposing into national legislation Directive 2003/9 EC of 27 January 2003 of the European Union on laying down minimum standards for the reception of asylum seekers, which came into force by means of Legal Notice 383 of 2005 on 22 November 2005, provides as follows: (2) If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant or his legal representative, the Ministry responsible for issuing employment licences shall decide the conditions for granting access to the labour market for the applicant. (3) Where an appeal is lodged against a negative decision, access to the labour market shall not be withdrawn during the appeal stage. 17. In accordance with the Maltese authorities'reply to the CPT report 2005 (cf. CPT/Inf (2005 ) 16, p. 24), and the United Nations General Assembly Report of the Working Group on Arbitrary Detention of 8 January 2010, this provision introduced a twelve month time-limit on detention. Thus, if within that time the asylum application has not yet been examined, the asylum seeker will be given access to the labour market and will have the right to an appropriate document from the Refugee Commissioner or the Refugee Appeals Board. An asylum seeker may remain in Malta until a final decision on the application is taken, unless the application is considered to be manifestly ill-founded by the Refugee Commissioner at first instance. Directive 2008/115/EC of the European Union on common standards and procedures in Member States for returning illegally staying third-country nationals provides that in situations where deportation is blocked by the failure of a third country to deliver the necessary travel documents, detention cannot exceed eighteen months. B. Remedies to challenge detention under Maltese law 1. Article 409A of the Criminal Code 18. An application in terms of Article 409A of the Criminal Code, Chapter 9 of the Laws of Malta, consists of a request to the Court of Magistrates to examine the lawfulness of detention and order release from custody. In so far as relevant, the Article reads as follows: “(1) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing. (2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour of or against the lawfulness of the continued detention of the applicant. (3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application. (4) Where the court decides to allow the application the record of the proceedings including a copy of the court's decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court's decision transmitted to the Attorney General under the provisions of this sub-article shall be filed together with the application by the Attorney General to the Criminal Court.” 2. Article 25A of the Immigration Act 19. The second remedy existing under domestic law is an application to the Immigration Appeals Board (“IAB”) if an asylum seeker feels that his or her detention is no longer reasonable. It entails requesting release from custody pending the determination of an individual's asylum claim or his or her deportation in accordance with Article 25A of the Immigration Act, Chapter 217 of the Laws of Malta. The same article regulates the manner in which and when such release may be granted. The relevant provisions read as follows: (6) During the course of any proceedings before it, the Board, may, even on a verbal request, grant provisional release to any person who is arrested or detained and is a party to proceedings before it, under such terms and conditions as it may deem fit, and the provisions of Title IV of Part II of Book Second of the Criminal Code shall, mutatis mutandis apply to such request. (8) The decisions of the Board shall be final except with respect to points of law decided by the Board regarding decisions affecting persons as are mentioned in Part III, from which an appeal shall lie within ten days to the Court of Appeal (Inferior Jurisdiction). (9) The Board shall also have jurisdiction to hear and determine applications made by persons in custody in virtue only of a deportation or removal order to be released from custody pending the determination of any application under the Refugees Act or otherwise pending their deportation in accordance with the following subarticles of this article. (10) The Board shall only grant release from custody under subarticle (9) where in its opinion the continued detention of such person is taking into account all the circumstances of the case, unreasonable as regards duration or because there is no reasonable prospect of deportation within a reasonable time: Provided that where a person, whose application for protection under the Refugees Act has been refused by a final decision, does not co-operate with the Principal Immigration Officer with respect to his repatriation to his country of origin or to any other country which has accepted to receive him, the Board may refuse to order that person's release. (11) The Board shall not grant such release in the following cases: ( a ) when the identity of the applicant including his nationality has yet to be verified, in particular where the applicant has destroyed his travel or identification documents or used fraudulent documents in order to mislead the authorities; ( b ) when elements on which any claim by applicant under the Refugees Act is based, have to be determined, where the determination thereof cannot be achieved in the absence of detention; ( c ) where the release of the applicant could pose a threat to public security or public order. 3. Constitutional Proceedings 20. An alternative remedy is a constitutional application before the Civil Court (First Hall), followed, if necessary, by an appeal to the Constitutional Court. However, in Sabeur Ben Ali v. Malta (no. 35892/97, 29 June 2000, § 40) and Kadem v. Malta ( no. 55263/00, § 53, 9 January 2003 ), the European Court held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicants'detention. Consequently, the Court held in the cited cases that the applicants had not had at their disposal, under domestic law, a remedy for challenging the lawfulness of their detention under Article 5 § 4 (see also Stephens v. Malta (no. 2), no. 33740/06, § 90, 21 April 2009 ). C. Domestic judgments relevant to the circumstances of the case : 1. Karim Barboush v. Commissioner of Police, (Judgment of the Criminal Court of 5 November 2004) 21. The domestic court, referring to the competence of the court under Article 409A, held that: “it is not within the competence of the Court of Magistrates or the Criminal Court to examine whether, beyond the fact that there is a clear law authorising continued detention, there are other circumstances which could render it illegal, such as an incompatibility with the rights granted by the Constitution or the Convention. There exist other proceedings before other courts vested by law to take cognisance of such cases and which may give adequate remedies if they find a violation of human rights. Article 409A is shaped in accordance with the legislator's words and no court should exceed the limits of the jurisdiction conferred upon it.” 2. Tafarra Besabe Berhe v. Commissioner of Police (Preliminary decree of the Civil Court (First Hall) acting in its constitutional jurisdiction of 20 June 2007 ) 22. In circumstances similar to the present one, the first-instance constitutional jurisdiction did not reject the claims for non-exhaustion of ordinary remedies but took cognisance of the case. It held that the remedy provided by the Immigration Act could not, even in the best possible scenario, grant a complete fair and certain remedy in cases where a person had been deprived of the right to liberty even for a short while. The case is currently adjourned for judgment to June 2010. 23. At the hearing of 24 May 2007 concerning these proceedings, an NGO lawyer who regularly lodges applications for release with the IAB was asked about the longest and shortest time span he has had to wait for a decision on an application. He testified as follows: “The shortest would be twenty-eight days and the longest eighty-six days for a decision, but there are cases which are pending which have been over three months or where the client has been released because the eighteen month period had expired.” 24. At the same hearing the Chairman of the IAB was asked to outline the criteria applied when determining if detention was reasonable or not in the circumstances. His testimony reads as follows: “We take all circumstances into account but obviously you have to consider the situation from a management point of view as well, and you have to consider as well that releasing somebody from detention is not just a matter concerning the applicant himself, because once he is released and he goes into society, if he is of bad character, you have to check his physical and medical condition and that is why we impose certain conditions because otherwise you would be, sort of doing, a good thing in favour of the applicant and not such a good thing vis a vis society at large. So we have to take into account everything but each case is dealt on its own merits.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 25. The applicant complained that he had been subject to inhuman and degrading treatment arising from the conditions of his detention, in violation of Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 26. The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted. Article 35 § 1 requires that the complaints intended to be made subsequently before the Court should have been made, at least in substance, to the appropriate domestic body (see Bezzina Wettinger and Others v. Malta, no. 15091/06, § 102, 8 April 2008 ). 27. The Court observes that the applicant failed to institute proceedings raising the Article 3 complaint before the Civil Court (First Hall) acting in its constitutional jurisdiction and if necessary to lodge an appeal before the Constitutional Court. 28. It follows that this complaint must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 29. The applicant complained that the Maltese legal system had not provided him with a speedy and efficient remedy, contrary to Article 5 § 4 of the Convention, 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.” 30. The Government contested that argument. A. Admissibility 1. The Government's objection of non-exhaustion of domestic remedies 31. The Government submitted that the applicant had not exhausted domestic remedies as he had failed to take up any of the available remedies. 32. The applicant submitted that none of the available remedies satisfied the requirements of Article 5 § 4. 33. The Court considers that this objection is closely linked to the substance of the applicant's complaint and that its examination should therefore be joined to the merits. It notes 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 34. The applicant submitted that there were no effective domestic remedies complying with the requirement of Article 5 § 4. Article 409A of the Criminal Code, as interpreted by the domestic courts, excluded the examination of other circumstances making detention unlawful when detention had a clear legal basis (see paragraph 21 above). 35. Article 25A of the Immigration Act did grant the possibility of release. However, this was restricted and not available to, inter alia, individuals whose identity and nationality were still to be verified or who had destroyed their identity or travel documents (see paragraph 19 above). The applicant further submitted that the IAB was not a judicial authority, that it failed to determine proceedings speedily as they could take between twenty-eight and eighty-six days to be determined ( see relevant testimony paragraph 23 above) and that it was not in conformity with Convention requirements ( see relevant testimony paragraph 24 above). Indeed, proceedings had been successful only in very limited circumstances when the individual was in a vulnerable situation. 36. Lastly, constitutional proceedings could not be envisaged in view of their excessive length which the Court had previously found not to be compatible with the requirements of Article 5 § 4. 37. The Government submitted that after the relevant law had been introduced in 2002, there had not been many decisions giving effect to or interpreting Article 409 of the Criminal Code. However, they acknowledged that the courts had, to date, established that if it was found that detention was authorised by law, they were precluded from examining constitutional issues in respect of that detention. This was on the basis that there existed a specific remedy in this respect, namely one of a constitutional nature. The Government submitted that nothing precluded an individual from taking up a constitutional remedy in order to allege that the detention was in violation of the Constitution or the Convention on account of its length. This having been said, the Government were of the view that the latter did not preclude such a complaint being brought under Article 409A on the basis that the detention became arbitrary in view of its excessive length. 38. As to the IAB the Government submitted that the latter was fully competent to grant release from custody where, in its opinion, the continued detention of a person was, taking into account all the circumstances of the case, unreasonable as regards duration or because there was no reasonable prospect of deportation within a reasonable time. They further submitted four examples of cases alleging unreasonable length of detention in view of the circumstances of the case, in which the IAB had granted release. The latter dealt with applications made by persons who were of old age, medically unfit or disabled and who had been detained in inadequate conditions of detention. The Government further provided a decision by the IAB where, notwithstanding the person's age, conditions of detention and probable problems in respect of an eventual repatriation, the request was refused in the absence of medical certification. 2. General principles 39. Article 5 § 4 entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 (see E. v. Norway, 29 August 1990, § 50, Series A no. 181). The remedies must be made available during a person's detention with a view to that person obtaining speedy judicial review of the lawfulness of his or her detention capable of leading, where appropriate, to his or her release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy (see Čonka v. Belgium, no. 51564/99, §§ 46 and 55, ECHR 2002-I). Article 5 § 4 of the Convention refers to domestic remedies that are sufficiently certain, otherwise the requirements of accessibility and effectiveness are not fulfilled (see Kadem v. Malta, cited above, § 41 ). 40. The requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009 ‑ ... ). 41. Article 5 § 4, in guaranteeing to persons arrested or detained a right to take proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention (see Musial v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II). 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). While Article 5 § 4 of the Convention does not impose an obligation on a judge examining an appeal against detention to address every argument contained in the appellant's submissions, its guarantees would be deprived of their substance if the judge could treat as irrelevant, or disregard, particular facts invoked by the detainee which could cast doubt on the existence of the conditions essential for the “lawfulness”, in the sense of the Convention, of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 91, ECHR 1999-II). The Court's assessment 42. The Court notes that the parties are in disagreement as to the effectiveness of the remedies invoked. It will therefore consider each remedy on the basis of the available information and the parties'submissions. 43. The Court notes that the applicant claimed that Article 409A was not an effective remedy for the purposes of the Convention in that it stopped short of examining lawfulness in the light of the requirements of the Convention. Indeed, the Court observes that the relevant courts entrusted with hearing applications under the said Article have acknowledged their limited competence, holding that they were not competent to look into other circumstances which could render detention illegal, such as an incompatibility with the rights granted by the Constitution or the Convention when there was a clear law authorising continued detention (see paragraph 21 above). The Government have also acknowledged that this was the ordinary interpretation of the relevant domestic courts (see paragraph 35 above). In these circumstances the Court is of the view that the remedy under Article 409A did not provide a review of the “lawfulness” of 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. In consequence, it cannot be considered as an effective remedy for the purposes of Article 5 § 4. It follows that the Court cannot agree with the Government that the applicant should have tried such a remedy. 44. As to the remedy before the IAB, the Court considers that, even assuming that it could be considered as a judicial authority competent to grant release, the relevant legal provision is limited by the fact that a request for release from custody has no prospect of success in the event that the identity of the detainee, including his nationality, has yet to be verified, in particular where he has destroyed his travel or identification documents or used fraudulent documents in order to mislead the authorities (see paragraph 19 above). Moreover, the Court cannot ignore the fact that, notwithstanding the high number of irregular immigrants arriving on Maltese shores, being detained and taking up this procedure, over recent years the Government have only submitted four cases where the remedy was successful. The Court observes that in each of these cases the individuals making the request were vulnerable, either because of their age, their medical condition or disability, and it was in view of the latter reasons that release was granted on the basis that the length of their detention had become unreasonable. Furthermore, it appears from the applicant's submissions substantiated by the relevant testimony (see paragraph 23 above) that these proceedings take at least one month to be decided and may last as long as three months or more. Indeed, it appears that there have been cases where the decision was not rendered before the actual release date of the detainee according to Government policy, rendering such a remedy devoid of any legal or practical effect (see, mutatis mutandis, Frasik v. Poland, no. 22933/02, § 66, 5 January 2010 ). The Government have not denied any of the above evidence or at least brought proof of other cases which were decided promptly by the IAB. It follows that these proceedings cannot be considered to determine requests speedily as required by Article 5 § 4 of the Convention (see, mutatis mutandis, Rehbock v. Slovenia, cited above §§ 82-86, in which the Court considered that a delay of twenty-three days in deciding on the applicant's claims for immediate release was excessive, Khudyakova v. Russia, no. 13476 /04, § 99, 8 January 2009 and Kadem v. Malta, cited above, §§ 43-45, where the Court held that periods of fifty-four and seventeen days respectively for examining an appeal against proceedings concerning detention pending extradition had been too long ). For all the above reasons the Court considers that the proceedings before the IAB cannot be considered as satisfying the requirements of Article 5 § 4 of the Convention. 45. Lastly, the Government submitted that there also existed a constitutional remedy of which individuals could avail themselves to complain about the length of their detention. In this respect the Court reiterates that constitutional proceedings in Malta are rather cumbersome for Article 5 § 4 purposes and that lodging a constitutional application could not ensure a speedy review of the lawfulness of an applicant's detention (see Sabeur Ben Ali v. Malta, cited above, § 40, and Kadem v. Malta, cited above § 53 ). The Government have not submitted any information or case-law capable of dispelling this conclusion. In these circumstances, the Court remains of the view that pursuing a constitutional application would not have provided the applicant with a speedy review of the lawfulness of his detention. 46. The foregoing considerations are sufficient to enable the Court to conclude that it has not been shown that the applicant had at his disposal under domestic law an effective and speedy remedy for challenging the lawfulness of his detention. 47. Article 5 § 4 of the Convention has therefore been violated and the Government's objection based on non-exhaustion of domestic remedies (see paragraph 31 above) must accordingly be rejected. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 48. The applicant complained that his detention following the determination of his asylum claim had been arbitrary and unlawful, in terms of Article 5 of the Convention, which in so far as relevant reads as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 49. The Government contested that argument. A. Admissibility 50. The Government submitted that the applicant had remained passive and even if the remedies available were limited the applicant should have pursued them. It followed that it was not for the Court to speculate on the outcome that such proceedings might have had, had they been undertaken. 51. In so far as the Government's contention may be understood as an objection of non-exhaustion of domestic remedies, the Court has already held that the applicant did not have at his disposal an effective and speedy remedy for challenging the lawfulness of his detention (see paragraphs 46-47 above). It follows that any such objection must be dismissed. 52. 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 53. The applicant submitted that his detention for more than eighteen months after the determination of his asylum claim had been arbitrary, unlawful and not in compliance with the requirements of the Convention as established in the Court's case-law. The Government had in place two policies regulating detention, namely, a policy for the release of asylum seekers after a period of twelve months from, according to the applicant, their arrival (see paragraph 17 above, which states that the period starts to run from detention) if their asylum claim is still pending, and secondly, the 2005 general policy on rejected asylum seekers or immigrants who do not request asylum which held that no immigrant shall be kept in detention for longer than eighteen months (see paragraph 16 above). These policies and the one relating to exceptions to detention were subject to change by Government at their discretion. Moreover, the unclear procedures in this respect were devoid of procedural safeguards, they could not therefore be considered as accessible and precise. Thus, the limited review of detention and the extremely poor conditions of detention also needed to be considered. 54. The applicant further submitted that the duration of his detention had been excessive and not determined by an assessment of the effective possibility of return but by a pre-established policy which applied independently of the individual circumstances of the case. Moreover, while in detention he had never been approached by the immigration authorities about the subject of his removal or informed of the stage of the removal procedure. Neither had the Government demonstrated in any way that removal proceedings had been undertaken with due diligence. Indeed, in 2010, although released from detention, the applicant was still in Malta. 55. The Government submitted that from 27 June 2007 to 6 January 2009 the applicant had been detained under Article 5 § 1(f) in accordance with Articles 5 (1) and 14 of the Immigration Act (see relevant domestic law above), provisions which were both accessible and precise. Consequently, the detention had been lawful. Indeed, according to the Government the twelve-month limit started to run from the date when an individual applied for asylum. Thus, the asylum claim having been decided on 18 July 2007, the decision was taken within the one-year time-limit provided by European law. Therefore, the relevant provisions of the Directive 2003/9EC of 27 January 2003 of the European Union did not apply to the case in question as the applicant had ceased to be an “asylum seeker” on 18 July 2007. However, even if this were not the case, the Government argued that access to the labour market did not entail freedom from detention, as both were not incompatible. The Government further submitted that both its policies on detention (mentioned by the applicant above) were reasonable in respect of duration considering the intricate problems involved in the removal of undocumented immigrants. The applicant's allegation of a blanket application of these policies to all immigrants was untrue as Malta had no desire to keep irregular immigrants in detention on its territory if it could repatriate them. However, this proved difficult because of the lack of cooperation between immigrants and their countries of origin. 56. Moreover, individuals did have the possibility of review by an independent judicial authority, with the assistance of legal counsel. Furthermore, conditions of detention were adequate considering the large influx of migrants on such a small island which had limited financial and human resources. 57. The Government submitted that the applicant had landed in Malta without any documentation and although his nationality and identity had been established, it had not been possible to arrange his removal. The police had unsuccessfully tried to obtain travel documents for the applicant from the Algerian authorities through the intervention of the Ministry of Foreign Affairs. Moreover, the applicant had not shown any interest in being repatriated or sent to another destination. Thus, the Government submitted that his detention of eighteen months (in accordance with Government policy) pending removal had been due to the applicant's lack of cooperation and had therefore been necessary, justified and not excessive. 2. General principles 58. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty (see Aksoy v. Turkey, 18 December 1996, § 76, Reports of Judgments and Decisions 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. 59. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds (see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008-...). One of the exceptions, contained in sub-paragraph (f), permits the State to control the liberty of aliens in an immigration context. 60. Article 5 § 1 (f) 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 1996 ‑ V ). 61. The deprivation of liberty must also be “lawful”. 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 of national law. The words “in accordance with a procedure prescribed by law” do not merely refer back to domestic law; they also relate to the quality of this law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. Quality in this sense implies that where a national law authorises deprivation of liberty, it must be sufficiently accessible and precise in order to avoid all risk of arbitrariness (see Dougoz v. Greece, no. 40907/98, § 55, ECHR 2001-II, citing Amuur v. France, 25 June 1996, § 50, Reports 1996-III). 62. 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. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond a 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, cited above, § 67). 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 [GC], cited above, § 164 ). 3. The Court's assessment 63. The Court notes that the applicant's detention in prison fell initially under Article 5 § 1 (c), namely, 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. It subsequently fell under sub-paragraph (a), namely, the lawful detention of a person after conviction by a competent court. These periods do not raise an issue before the Court. 64. After he served his sentence, the applicant was transferred to a detention centre and detained “ with a view to deportation” within the meaning of Article 5 § 1 (f). It follows that the period of detention to be considered for the purposes of this complaint is that from 27 June 2007, the date when the applicant was placed in a detention centre pending the processing of his asylum claim, to 6 January 2009, when he was released. The duration of the detention therefore amounted to eighteen months and nine days. The Court notes that the entire duration of the detention was subsequent to the rejection of his asylum claim at first instance, on 24 April 2007, and that the final decision on his asylum claim was delivered three weeks after the commencement of his detention in the detention centre. 65. The Court must determine whether the duration of the detention was excessive and whether the authorities pursued the deportation proceedings with due diligence. 66. The Court observes that the delay in the present case is not as striking as that in other cases (see Chahal, cited above, and Raza v. Bulgaria, no. 31465/08, 11 February 2010, where the duration was of more than three and two and a half years respectively). However, the delay was not due to the need to wait for the courts to determine a legal challenge, the applicant's asylum claim having been determined before his detention. Although the identity and nationality of the applicant had been determined, the Government submitted that repatriation had been difficult as the applicant was undocumented, the Algerian authorities had refused to issue the relevant documents and the applicant had been unwilling to cooperate. The Court notes that the Government have not submitted any details as to the procedures initiated save that the police had attempted to obtain such documents through the intervention of the Ministry of Foreign Affairs. They have not submitted information about the frequency of such requests or whether any other avenues were explored. The Court considers that while it is true that the Maltese authorities could not compel the issuing of such a document, there is no indication in the Government's observations that they pursued the matter vigorously or endeavoured entering into negotiations with the Algerian authorities with a view to expediting its delivery (see Raza v. Bulgaria, cited above, § 73; Tabesh v. Greece, no. 8256/07, § 56, 26 November 2009; and, conversely, Agnissan v. Denmark (dec.), no 39964/98, 4 October 2001 ). 67. The Government blamed the applicant for his unwillingness to cooperate. However, assuming the Government were right in their allegation, the Court considers that it must have become clear quite early on that the attempts to repatriate him were bound to fail as the applicant had refused to cooperate and/or the Algerian authorities had not been prepared to issue him documents. Detention cannot be said to have been effected with a view to his deportation if this was no longer feasible (see Mikolenko v. Estonia, no. 10664/05, §§ 64-65, 8 October 2009 ). Indeed, the Court notes that to date, a year and a half after his release, the applicant is still in Malta. 68. Moreover, the Court finds it hard to conceive that in a small island like Malta, where escape by sea without endangering one's life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant's protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion. 69. In the light of the above, the Court has grave doubts as to whether the grounds for the applicant's detention – action taken with a view to his deportation – remained valid for the whole period of his detention, namely, more than eighteen months following the rejection of his asylum claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure of the domestic authorities to conduct the proceedings with due diligence. 70. In such circumstances the Court will move on to determine whether the detention was lawful under national law, effected “in accordance with a procedure prescribed by law” and, in particular, whether there existed sufficient guarantees against arbitrariness. 71. The Court is ready to accept that notwithstanding the various policies, the accessibility and precision of which are doubtful, the applicant's detention was based on Articles 5 and 14 of the Immigration Act. However, the Court must consider whether Maltese law guaranteed a particular procedure to be followed which could offer safeguards against arbitrariness. The Court primarily notes that the Immigration Act applied no limit to detention and that the Government policies have no legal force. In consequence, the applicant was subject to an indeterminate period of detention (see, mutatis mutandis, Muminov v. Russia, no. 42502/06, § 122, 11 December 2008 ). In such circumstances the necessity of procedural safeguards becomes decisive. However, the Court has already established that the applicant did not have any effective remedy by which to contest the lawfulness and length of his detention (see paragraphs 46-47 above), and the Government have not pointed to any other normative or practical safeguard. It follows that the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation (see, mutatis mutandis, Soldatenko v. Ukraine, no. 2440/07, § 114, 23 October 2008 ). 72. In these circumstances the Court finds it unnecessary to examine the applicant's conditions of detention, which it reiterates must be compatible with the purposes of detention. 73. The foregoing considerations are sufficient to enable the Court to conclude that the national system failed to protect the applicant from arbitrary detention, and his prolonged detention cannot be considered to have been “lawful” for the purposes of Article 5 of the Convention. 74. There has accordingly been a violation of Article 5 § 1 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION 75. The applicant complained that upon being apprehended after a long sea journey he had not been provided with the legal and factual grounds for his detention in terms of Article 5 § 2 of the Convention, which reads 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. 76. The Government contested that argument. A. Admissibility 77. The Court has already held that it is not open to it to set aside the application of the six-month rule, solely because a Government have not made a preliminary objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 ‑ III ). 78. The Court reiterates that where there is no effective remedy, the six-month period runs from the date of the omission complained of, or from the date when the applicant learned about the omission ( see Moroko v. Russia, no. 20937/07, § 34, 12 June 2008 ). Applied to the present case, this means the date when the applicant was first arrested, namely on 24 June 2006 (see paragraph 7 above) and therefore more than six months before the lodging of this application with the Court on 6 March 2008. 79. It follows that this complaint is inadmissible for non-compliance with the six -month rule set out in Article 35 § 1 of the Convention, and is rejected pursuant to Article 35 § 4. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 81. The applicant claimed 300,000 euros (EUR) in respect of non-pecuniary damage in respect of the alleged violations of Articles 3 and 5 §§ 1, 2, and 4 of the Convention. 82. The Government submitted that the claim was exorbitant and could only be equated to serious Article 3 violations dealing with torture. 83. The Court notes that it has found a violation of Article 5 §§ 1 and 4. The Court therefore awards the applicant EUR 12,000 in respect of non-pecuniary damage. B. Costs and expenses 84. The applicant did not submit a claim for costs and expenses. C. Default interest 85. 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 5 § 1 (right to liberty and security) and a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention due to the applicant’s detention for more than 18 months, the maximum allowed according to a policy introduced in Malta in 2005 concerning illegal immigrants, refugees and integration. |
1,061 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW 23. The collection and refunding of value-added tax (VAT) is regulated by the Law on Value-Added Tax. Article 3 of the law provides that both the sale of goods in Ukraine and the export of goods from Ukraine are subject to taxation. Under Article 6 of the law, the former is taxed at a 20 % rate, whereas the latter is taxed at 0 %. 24. The procedure to establish the amount of VAT due or to be refunded is regulated by Articles 7 and 8, which provide as relevant: “7.7. The procedure to establish the amount of tax to be paid into the budget or to be used as compensation from the budget, and the terms of settlements within the budget 7.7.1. The amount of tax to be paid into the budget or refunded from the budget shall be determined as the difference between the total amount of tax obligations, which commence with any sale of goods (works, services) within the reporting period, and the amount of tax to be credited during the reporting period. Payment of the tax shall be made not later than the twentieth day of the month that follows the reporting period. 7.7.2. The tax payer shall submit a tax declaration to the local body of State tax services ... 7.7.3. Where ... the amount determined by subparagraph 7.7.1 of this Article is negative, it shall be refunded to the tax payer from the State budget of Ukraine within a month following the reporting period. ... Amounts that are not so refunded to the tax payer ... shall be considered a budget debt. Interest at 120 % of the basic rate of the National Bank of Ukraine shall be charged on that debt from the moment it arises and for the whole period of its validity, the repayment date inclusive. The tax payer is entitled at any moment after commencement of the budget debt to apply to a court with an action to collect the budget funds and establish the liability of the officials responsible for the untimely refund of overpaid taxes. ... 7.7.5. Amounts of value-added tax are included in the State budget and shall first be used for budget refunds of value-added tax according to this Law. ... Where the amount of budget receipts obtained from the payment of value-added tax ... does not cover the amount subject to refunding ..., funds from other [State budget] resources ... shall be used for such compensation. ... 8.1. A tax payer that performs export operations ... and files calculations for export compensation ... may receive such compensation within 30 calendar days from the date of submitting such calculations. ... 8.6. Export compensation shall be provided within 30 calendar days, following the day of the filing of export compensation calculations. In case the tax payer fails to submit the calculation of export compensation within the established terms, export compensation shall not be provided and the amounts of such compensation shall be taken into account when calculating the tax payer ’ s future tax obligations ... Calculations of export budgetary compensation shall be submitted together with the declarations for the corresponding reporting period.” 25. According to the Procedure for the Refund of Value Added Tax, adopted by the joint decree of the State Tax Administration of Ukraine and the Main Department of the State Treasury of Ukraine No. 209/72 on 2 July 1997, the VAT refund is made by the State Treasury of Ukraine on the basis of a confirmation by the tax authorities or a court decision. The VAT refund shall be made within five days after the tax authority has submitted the confirmation of the amount claimed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 26. The applicant company claimed that the State ’ s practice of groundlessly refusing to confirm its entitlement to VAT refunds constituted an interference with the peaceful enjoyment of its property in violation of Article 1 of Protocol No. 1 to the Convention. This provision reads as follows : “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Whether there was a possession 1. The submissions of the parties 27. The Government maintained that the applicant ’ s entitlement to VAT refunds could only be considered a “possession” under Article 1 of Protocol No. 1 after confirmation of the amounts by court decisions. If the tax authorities disputed the entitlement of the applicant to the claimed VAT refund, it was only by virtue of a court decision that the applicant acquired “possessions” or “legitimate expectations” to receive them. 28. The Government disagreed with the conclusion reached in the admissibility decision that the tax authorities had not objected to the amounts of the VAT refund claimed by the applicant. 29. The applicant maintained that the basis for the VAT refund under the law was the information provided by the applicant itself in its tax declarations. The court decisions given in its favour in the present case showed that its right to the VAT refunds was violated prior to its application to the courts, thus demonstrating that the right existed prior to those decisions. Moreover, under the law, the State could only use funds received from VAT payments for other purposes after all VAT refunds had been made. Until then, therefore, the link between the VAT and the taxpayer remained. It concluded that the right to VAT refunds, and compensation for delays in their payment, constituted “possessions” within the meaning of Article 1 of Protocol No. 1. 2. The Court ’ s assessment 30. The Court points out that the concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is independent from the formal classification in domestic law (see Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I). The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant an entitlement to a substantive interest protected by Article 1 of Protocol No. 1. 31. In this connection, the Court notes that in the instant case the dispute does not concern the particular amount of a VAT refund or of compensation for the delay, but the applicant ’ s general entitlement under the law to VAT refunds and compensation. The Court observes that, having met the criteria and requirements established by the domestic legislation, the applicant could reasonably expect the refund of the VAT it had paid in the course of its business activities, as well as compensation for any delay. Even though a particular claim for a VAT refund may be subject to checks and objections from the competent State authorities, the relevant provisions of the Law on Value-Added Tax do not require the prior judicial review of a claim to validate a company ’ s eligibility for a refund. As to the Government ’ s objection to the conclusion reached in the admissibility decision that the tax authorities had not objected to the amounts of the VAT refund claimed by the applicant, the Court notes that that conclusion was based on the materials in its possession. From the case-file materials it appears that the tax authorities did not dispute the amounts of the VAT refunds to be paid to the applicant, but simply refused to confirm them without any apparent reason, relying erroneously on a lack of competence in refunding matters. It is true, however, that on several occasions, and only once successfully, the calculations of the compensation for the VAT refund delay made by the applicant had been objected to by the tax authorities in the courts ’ proceedings. This latter point, however, does not negate the Court ’ s conclusion about the original VAT refund proceedings. 32. While the Court does not find it necessary to determine the precise content and scope of the legal interest in question, it is nevertheless satisfied that the factors outlined above show that the applicant had a proprietary interest recognised by Ukrainian law, and protected by Article 1 of Protocol No. 1 (see, mutatis mutandis, Buffalo S.r.l. en liquidation v. Italy, no. 38746/97, § 29, 3 July 2003). B. Whether there was interference 33. The parties did not dispute that the delays in refunding the VAT to the applicant could be regarded as interference with the applicant ’ s right to peaceful enjoyment of its possession. In the Court ’ s opinion, this situation comes within the first sentence of the first paragraph of Article 1 of Protocol No. 1, which lays down the principle of peaceful enjoyment of property in general terms (see Buffalo S.r.l. en liquidation, cited above, § 31). C. Whether the interference was justified 1. The submissions of the parties 34. The Government maintained that there were exceptional circumstances that necessitated measures to protect the economic interests of the country. The State faced a situation in which the system of VAT refunding was abused; in particular, there were numerous cases of VAT evasion, groundless claims for VAT refunds and fictitious export operations. In this situation the Government were required to take measures to stop such abuses and to prevent them in the future. In the Government ’ s opinion, the judicial control over the VAT refunding was necessary to secure the public interest and to prevent abuses. 35. The Government further stated that the tax authorities ’ actions in the present case were based on a disproportion between the amounts paid by the applicant in taxes and the amounts of VAT refund which it claimed. This created a suspicion that the applicant was using fictitious companies for its scrap metal supplies. According to the Government, such fictitious enterprises had indeed been discovered by the authorities. 36. The Government considered, therefore, that the measures taken were within the State ’ s margin of appreciation and the interference was proportionate, and therefore a fair balance had been struck between the interests of the applicant and the public interest. 37. The applicant maintained that it had paid its taxes lawfully and these payments had been checked on numerous occasions by the State authorities. It pointed out that it was not responsible for other companies from whom it bought metal, the price of which was inclusive of VAT. The obligation to pay that VAT was on the latter companies, not the applicant. The applicant underlined that it had neither the competence nor the possibility to control other businesses, and the situation referred to by the Government demonstrated the unsatisfactory workings of the tax authorities, for which the applicant should not be held liable. It further underlined that numerous checks of its activities conducted by the tax authorities had revealed no irregularities on which the latter could base their refusals. 2. The Court ’ s assessment 38. The Court reiterates that States have a wide margin of appreciation in determining what is in the public interest as the national legislature has a wide discretion in implementing social and economic policies. However, that margin of appreciation is not unlimited and its exercise is subject to review by the Convention institutions (see Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 50-51, §§ 121-22 ). In the Court ’ s view, when the State authorities possess any information about abuse of the VAT refund system by a concrete entity, they can apply appropriate measures to prevent or stop such abuses. The Court cannot, however, accept the argument about a general situation with the VAT refunds advanced by the Government, in the absence of any indication of the applicant ’ s direct involvement in such abusive practices. 39. The Court further notes that since April 1998 the VAT refunds to the applicant have been systematically delayed. Such delays were caused by the situation in which the tax authorities, not disputing, as it appears from the case-file, the amounts of VAT refunds due to the applicant, constantly failed to confirm these amounts. Such failure prevented the applicant from recovering the claimed amounts in due time and created a situation of chronic uncertainty. Furthermore, it forced the applicant to appeal to the courts on a regular basis with identical claims. In the Court ’ s view, it may be considered reasonable to require that such refusals be challenged in a single or a few cases. However, in the present case, the applicant ’ s recourse to this remedy has not prevented the tax authorities from continuing the practice of delaying payment of the VAT refunds, even after court decisions have been given in the applicant ’ s favour (cf. paragraph 18 above). The systematic nature of the failings of the State authorities has resulted in an excessive burden being imposed on the applicant. 40. In these circumstances, therefore, the Court considers that interference with the applicant ’ s possession was disproportionate. In fact, the constant delays with VAT refund and compensation in conjunction with the lack of effective remedies to prevent or terminate such an administrative practice, as well as the state of uncertainty as to the time of return of its funds, upset the “fair balance” between the demands of the public interest and the protection of the right to peaceful enjoyment of possessions. In the Court ’ s view, the applicant bore and continues to bear an individual and excessive burden (see, mutatis mutandis, Buffalo S.r.l. en liquidation, cited above, § 39). There has accordingly been and continues to be a violation of Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 42. The applicant claimed UAH 52,909,140 (around EUR 826,709.38 ) as compensation for loss of profits, UAH 8,380,385.68 (around EUR 1,309,435.26 ) as compensation for inflation losses, UAH 2,114,900.06 (around EUR 330,435.13 ) of expenses for bank credits, and UAH 583,943.12 (around EUR 91,241.11 ) of expenses for severance payment. 43. The Government maintained that the applicant ’ s claims under this head were ill-founded. 44. The Court takes into account that in the present case interest at 120 % of the basic rate of the National Bank of Ukraine should be charged on debts of VAT refund to the applicant from the moment they arise and for the whole period of their validity. Whilst the Court cannot speculate as to the economic performance of the applicant, it does not find it unreasonable to regard the applicant as having suffered some material loss. Ruling on an equitable basis, in accordance with Article 41, the Court awards EUR 25,000.00 (see, mutatis mutandis, Pélissier and Sassi v. France [GC], no. 25444/94, § 80, ECHR 1999 ‑ II). 2. Non-pecuniary damage 45. The applicant claimed a symbolic sum of 1 Euro for non-pecuniary damage. 46. The Government left the issue to the Court ’ s discretion, if the latter should find a violation of the Convention. 47. The Court considers that in the present case, there is no call for a pecuniary award under this head. Accordingly, it does not make any award in that respect. 48. The Court further considers that in the circumstances of the present case the most appropriate form of redress would, in principle, be the elimination of the administrative practice of delaying the VAT refund, which has been found to be contrary to Article 1 of Protocol No. 1. B. Costs and expenses 49. The applicant claimed UAH 3,585.16 (around EUR 560 ) for travel expenses and UAH 106,953.77 (around EUR 16,711.53 ). 50. The Government considered this claim unsubstantiated, without giving any further specification. 51. The Court considers that in so far as the applicant claims travel expenses, given the number of the domestic proceedings ( see paragraph 15 ), the claimed amount appears to be justified. The Court, therefore, awards it in full. As to the court fees which remained due to the applicant in the domestic proceedings at issue (see appendix to the admissibility decision of 31 May 2005), the Court considers that full payment of the court fees awarded to the applicant within the domestic proceedings listed in the Annex to the admissibility decision of 31 March 2005 would constitute final settlement in this part. 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 1 (protection of property) of Protocol No. 1, finding that the interference with the applicant’s possession had been disproportionate. The Court considered in particular that the constant delays with VAT refund and compensation in conjunction with the lack of effective remedies to prevent or terminate such an administrative practice, as well as the state of uncertainty as to the time of return of its funds, had upset the “fair balance” between the demands of the public interest and the protection of the right to peaceful enjoyment of possessions. In the Court’s view, the applicant had borne and continued to bear an individual and excessive burden. Just satisfaction: The Court decided that Ukraine was to pay the applicant 25,000 euros in respect of pecuniary damage. |
645 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW 22. The relevant provisions of the Danish Penal Code applicable at the time read as follows: Article 267 “Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to imprisonment not exceeding four months.” Article 268 “If an allegation has been maliciously made or disseminated, or if the author has no reasonable ground to regard it as true, he shall be guilty of defamation, and the punishment mentioned in Article 267 may increase to a term not exceeding two years.” Article 269 “1. An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others. 2. The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true.” Article 272 “The penalty prescribed in Article 267 of the Penal Code may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation.” Article 273 “1. If a defamatory allegation is unjustified, a statement to that effect shall, at the request of the injured party, be included in the sentence. 2. Any person convicted of defamation may be ordered at the request of the insulted person to pay to the insulted person an amount fixed by the court to cover the costs of promulgating the judgment conclusion alone or also the grounds in one or more official gazettes. This also applies even if the judgment only provides for retraction under the provision of subsection 1.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 23. The applicants complained that the judgment of the High Court amounted to a disproportionate interference with their right to freedom of expression guaranteed 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.” 24. The Government contested that argument. A. Admissibility 25. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 26. The applicants recognised that their conviction was prescribed by law and that, in respect of S, it pursued a legitimate aim. 27. They submitted, however, that Copenhagen University Hospital could not, in its capacity as a public body, rely on “the protection of the reputation or rights of others” under Article 10 of the Convention and referred in this respect, inter alia, to the dissenting opinion in Romanenko and Others v. Russia, no. 11751/03, 8 October 2009. In the applicants ’ opinion it would seriously harm democratic principles and legal certainty if the State were able to protect itself from public scrutiny by limiting the freedom of expression of a journalist where a public body is involved. The judiciary is the only public authority whose protection is capable of constituting a legitimate aim within the meaning of Article 10 § 2. 28. Moreover, they maintained that the interference constituted a breach of their rights as journalists as the interference was not necessary in a democratic society. 29. The main purpose of the programme was to perform a critical assessment of the treatment of mesothelioma at Copenhagen University Hospital, compared to the treatment by other leading experts, and to raise questions about whether patients should have been informed of other therapeutic options than Vinorelbine. It presented the patients ’ and the families ’ frustrations over being denied the choice of their preferred chemotherapy, especially given the fact that Alimta had undergone phase III examination and thus was more thoroughly tested than Vinorelbine. The programme was not scientific and did not claim to give a scientific account of the advantages of one cancer treatment over the other. 30. The documentary was based on substantive and significant journalistic research carried out over a period of approximately one year. It included international medical experts and a very broad range of open source material. The applicants acted in good faith and in full compliance with press ethics when preparing and airing the programme. Both S and Copenhagen University Hospital were invited to comment on the allegations in the documentary on numerous occasions. The memorandum of 11 June 2008 produced by Copenhagen University Hospital was not suitable for inclusion in the documentary as it did not answer the specific questions asked by the applicants. 31. The subject matter, that the patients and their families felt that they were not being properly informed and given the choice of which chemotherapy treatment they preferred at Copenhagen University Hospital, was clearly of public interest, and the documentary gave rise to a broad public debate. The impact was significant and had various important consequences, inter alia, a public demand for Alimta therapy and a change in practice at Copenhagen University Hospital, all of which highlighted why this kind of journalism was essential and indispensable in a democratic society. 32. The domestic courts failed to carry out a careful balancing exercise between the right to impart information and protection of the reputation of others. They gave a distorted picture of the content of the documentary and the responsibility of the journalist reporting what was being said by others. The applicants noted, for example, that the charge against them did not relate to any specific statements in the documentary and that the domestic courts did not mention any specific statements by the applicants which were considered incorrect. Moreover, the voice-overs provided in the programme should not be considered in isolation, but in the context of the journalistic production as a whole with respect for the function of the documentary and of the documentary genre as a dissemination tool for statements of named third parties. The High Court performed a crucial change of the conclusions of the documentary by finding that the programme gave a defamatory impression that Alimta was a superior product and that S had caused unnecessary death for his personal benefit. This was clearly not stated in the documentary. The judicial authorities placed a disproportionate and unfair burden on the applicants requiring, under criminal law, that they provide medical documentation about Alimta compared to Vinorelbine. The wording of the High Court judgment also indicated that there had been no specific assessment by the judges of the value of the documentary to general society. 33. Finally, the applicants submitted that the penalties imposed were disproportionate to the harm alleged and likely to deter journalists from performing their essential role as “public watchdogs” and keeping the public informed about matters of public interest. They pointed out that they had received criminal convictions, had had to pay fines and there had been the final “punishment” of paying costs to S and Copenhagen University Hospital. 34. The Government maintained that the interference was prescribed by law and pursued the legitimate aim of protecting the reputation of others. They referred to case-law in which the Court had presupposed that a public body could also fall within “the protection of the reputation or rights of others”, for example, Romanenko and Others v. Russia, cited above, § 39; Lombardo and Others v. Malta, no. 7333/06, §§ 50 and 54, 24 April 2007; and Thorgeir Thorgeirson v. Iceland, 25 June 1992, Series A no. 239. They further contended that since it was recognised that the reputation of the police may be a legitimate aim, the same should apply to several other public bodies. The conditions at a public hospital constitute an issue of considerable public interest and entail a need for wider limits for public scrutiny, but this is partly for other reasons than for a public body exercising power in the traditional sense. Public interest may therefore be deemed to be interconnected with the relevance of the activities of the hospital to the life and health of individuals. Allegations made on a factually incorrect basis will affect the patient ’ s confidence in the treatment offered and may weaken the possibilities of the hospital to function in an optimal manner. In addition, it would amount to unfounded arbitrariness in the protection of the health interests of the contracting States if they were to have the possibility of interfering with attacks on the reputation of private hospitals but not of public hospitals. 35. With respect to the proportionality test, the Government found it of vital importance that the case at hand did not concern dissemination of defamatory statements made by others. It concerned defamatory statements independently worded and made by the applicants, notably when they had used the voice-over to convey the impression to the viewers that improper treatment had been given and that this was S ’ s deliberate choice, motivated by his desire for professional esteem and his personal financial situation. This should lead to a stricter assessment of the applicants ’ defamatory statements when balanced against the protection of the reputation or rights of S and Copenhagen University Hospital. 36. The Government also submitted that, although the High Court did not make an explicit classification of the allegations, the wording of the reasoning clearly illustrated that it considered them to be allegations of facts, at least those elements of the allegations that did not relate to S ’ s motives. 37. Referring to the High Court ’ s finding, the Government maintained that the applicants did not act on a factually correct basis, nor did they provide reliable and precise information in accordance with the ethics of journalism when making their very serious allegations. They did not act in good faith. Among other things, they deliberately omitted to inform the viewers that according to the research material available to them, the effect of Vinorelbine had been documented, and that there was no basis for stating that Alimta -based chemotherapy was more effective than the Vinorelbine ‑ based treatment offered by Copenhagen University Hospital. They also omitted to mention that Copenhagen University Hospital, in a memorandum of 11 June 2018 to the applicants, had given a thorough account of the reasons for the medical product chosen, and an explanation of the research, which emphasised that the doctors involved did not themselves benefit financially. Furthermore, as stated by the High Court, by not defining the term “approved” or the difference between a drug approved for treatment and a drug approved for marketing, and by consistently using the term “experimental drug”, the applicants made accusations resting on a factually incorrect basis, of which they must be deemed to have become aware through the research material. 38. In the assessment of the nature and seriousness of the defamation the Government found that great importance had to be attached to the fact that audio-visual media are very effective, and that the allegations were made in a television programme by a national television company which is generally perceived as highly reliable. 39. The Government fully recognised that the subject at issue was of considerable public interest, for which reason a broader protection of the freedom of expression applies. The aim could have been achieved, however, without making the impugned accusations. They also pointed out that the High Court found that it had not been substantiated that there was any medical difference between Vinorelbine and Alimta, which was also the conclusion of the independent medical oncologist of the Patient Insurance Association. The changes of treatment regime at Copenhagen University Hospital caused by the programme thus illustrated that allegations made by the press on a factually incorrect basis may harm individuals ’ confidence in the national health authorities. 40. Finally they pointed out that the applicants had been given very mild sentences. 2. The Court ’ s assessment (a) Whether there was an interference prescribed by law 41. It is common ground between the parties that the impugned judgment constituted an “ interference by [a] public authority” with the applicants ’ right to freedom of expression as guaranteed under the first paragraph of Article 10 and that it was prescribed by law. (b) Whether it pursued a legitimate aim 42. The applicants disputed that Copenhagen University Hospital, being a public body, could rely on “the protection of the reputation or rights of others” under Article 10 of the Convention and referred in this respect, inter alia, to the dissenting opinion in Romanenko and Others v. Russia (cited above). 43. The Court reiterates that in Thorgeir Thorgeirson v. Iceland (cited above, § 59), concerning charges for defamation of an unspecified member of the police, it was not disputed, or questioned by the Court, that the applicant ’ s conviction and sentence were aimed at protecting the “reputation ... of others” and thus had a legitimate aim under Article 10 § 2 of the Convention. 44. Moreover, in Romanenko and Others v. Russia (cited above, § 39), concerning a court ’ s management department, being a public body, the Court acknowledged “that there may be sound policy reasons to decide that public bodies should not have standing to sue for defamation in their own capacity; however, it is not its task to examine the domestic legislation in the abstract but rather to consider the manner in which that legislation was applied to, or affected, the applicant in a particular case”. Thereafter, it went on to examine the issue in the analysis of the proportionality of the interference. 45. Likewise, in Lombardo and Others v. Malta (cited above, § 50) although stating that it is only in exceptional circumstances that a measure proscribing statements criticising the acts or omissions of an elected body such as a council can be justified with reference to “the protection of the rights or reputations of others”, the Court was prepared to “assume that this aim can be relied on“, and went on to the proportionality test. 46. Furthermore, in Kharlamov v. Russia (no. 27447/07, § 25, 8 October 2015) concerning a University ’ s authority, the Court went on to consider the issue in the analysis of the proportionality of the interference. It did state, though (ibid. § 29), that the protection of the University ’ s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). The latter reference concerned a State-owned company in respect of which the Court observed (ibid. § 22); “ ... 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.” 47. Having regard to the above-cited case-law, the Court is not convinced by the applicants ’ submission that the judiciary is the only public authority whose protection is capable of constituting a legitimate aim under Article 10 § 2. 48. In the present case, the High Court found that the applicants, as producer of the programme and as chief sub-editor, had made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients, and that such an accusation was likely to disparage Copenhagen University Hospital and S in the eyes of their fellow citizens as set out in Article 267 of the Penal Code (see paragraph 19 above). 49. The Court notes, in addition, that the impugned allegations were strongly linked to S and his alleged motives for using the product Vinorelbine on his patients suffering from mesothelioma. The allegations were also found to be defamatory for Copenhagen University Hospital which, in the Court ’ s view, rather acted as the representative for its unnamed management and staff, who were also concerned by the accusations in the programme, than being a mere institution representing its interests in the form of prestige or commercial success. The case thus appears comparable to the situation in Thorgeir Thorgeirson v. Iceland (cited above). In such circumstances the Court can agree with the Government that there is no basis in the notion of “others” set out in the second paragraph of Article 10 to distinguish between attacks on the reputation of medical staff at private hospitals as opposed to public hospitals. 50. Having regard thereto, and to the particular circumstances of case, the Court concludes that also in respect of Copenhagen University Hospital, the applicant ’ s conviction and sentence were aimed at protecting the “reputation ... of others” and had a legitimate aim under Article 10 § 2 of the Convention. (c) Whether the interference was necessary in a democratic society ( i ) General principles 51. The principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well ‑ established in the Court ’ s case-law (see, among other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 131 to 132, ECHR 2015, with further references). The Court has to examine 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. 52. In this context, the Court recalls that the interference aimed at protecting the reputation of an individual, consultant S, as well as a public body in its capacity of representing its unnamed staff, the University Hospital (see paragraphs 49 -5 0 ). As regards, in particular, protection of the reputation of an individual, the Court has held that a person ’ s reputation, even if that person is being criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore falls within the scope of his or her “private life”. In order for Article 8 to come into play, though, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see, inter alia, (see Delfi, cited above, § 137; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and A. v. Norway, no. 28070/06, § 64, 9 April 2009). 53. Having been required on numerous occasions to consider disputes requiring an examination of the fair balance to be struck between the right to respect for private life and the right to freedom of expression, the Court has developed general principles emerging from abundant case-law in this area (see, among other authorities, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83 to 93, ECHR 2015 (extracts)). The criteria which are relevant when balancing the right to freedom of expression against the right to respect for private life are, inter alia : the contribution to a debate of general interest; how well-known the person concerned is and what the subject of the report is; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction imposed (see, for example, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 165, ECHR 2017 (extracts); Axel Springer AG v. Germany [GC], cited above, §§ 83 and 89 to 95, 7 February 2012 and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108 to 113, ECHR 2012). 54. Finally, the Court reiterates that where the national authorities have weighed up the freedom of expression with the right to private life in compliance with the criteria laid down in the Court ’ s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see, inter alia, Von Hannover v. Germany (no. 2) [GC], cited above, § 107, Axel Springer AG v. Germany [GC], cited above, § 88; Lillo-Stenberg and Sæther v. Norway, no. 13258/09, § 44, 16 January 2014; and Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 92 ). 55. Even though the interference aimed at protecting the reputation of the University Hospital, which is covered by “reputation of ... others” in Article 10 § 2, and consultant S, who is not only covered by the same provision but who may also rely on the right to respect of private life as protected by Article 8 § 1 of the Convention, the Court will proceed with assessing the proportionality of the interferences on the basis of the same criteria (see paragraph 53 above) in relation to both the University Hospital and consultant S. (ii) Application of those principles to the present case ( α ) The subject matter of the programme and its contribution to a debate of general interest 56. The applicants maintained that the main purpose of the programme was to perform a critical assessment of the treatment of mesothelioma at Copenhagen University Hospital, compared to treatment by other leading experts, and to raise questions about whether patients should have been informed of other therapeutic options than Vinorelbine. It presented the patients ’ and the families ’ frustrations over being denied the choice of their preferred chemotherapy, especially given the fact that Alimta had undergone phase III examination and thus had been more thoroughly tested than Vinorelbine. The programme was not scientific and did not claim to give a scientific account of the advantages of one cancer treatment over another. 57. It is evident from the judgments of the domestic courts, though, that the programme also raised the question of whether the applicants had made, directly and indirectly, allegations that S and Copenhagen University Hospital had given certain patients suffering from mesothelioma improper treatment resulting in their unnecessary death and the shortening of their lives in order to promote S ’ s professional esteem and personal financial situation. 58. The domestic courts acknowledged that such a subject was of public interest. In fact, the High Court pointed out in its judgment of 10 June 2011 that the matter was an issue of very considerable public interest by stating the following: “A very considerable public interest is related to journalistic discussion about risk to life and health, or suspicion thereof, as regards public hospital treatment. When balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. That entails acknowledgement of a very far-reaching freedom of expression for the press, and accordingly the press must be permitted, as the public control- and information organ ( ‘ public watchdog ’ ), a certain amount of exaggeration and provocation in connection with their discussion of these questions, when factually there are reasons for expressing criticism.” 59. The Court agrees with the domestic courts that the programme dealt with issues of legitimate public interest. ( β ) How well-known the person concerned is and his conduct prior to the programme 60. In the present case, the impugned criticism was directed at S and Copenhagen University Hospital, being a public hospital, including its unnamed management and staff, who were also concerned by the accusations in the programme (see paragraph 49 above). They were all vested with official functions. The Court reiterates in this respect that the limits of acceptable criticism are wider as concerns public figures than private individuals (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], cited above, §§ 117 to 123, with further references). The Government also accepted that in the present case, there was a need for wider limits for public scrutiny, not because Copenhagen University Hospital could be compared to a public body exercising power in the traditional sense, but rather because the activities of the hospital and its conditions had an impact on the life and health of individuals. A similar view was expressed by the High Court (see paragraph 58 above) when pointing out that in respect of public hospital treatment, when balancing considerations of freedom of expression with considerations of the protection of the name and reputation of persons and companies, the former is accorded tremendous weight on the scale. ( γ ) Content, form and consequences of the impugned programme 61. The domestic courts found that the applicants in the programme had made allegations that S and Copenhagen University Hospital had given certain patients suffering from mesothelioma improper treatment, resulting in their unnecessary death and the shortening of their lives to promote the professional esteem and personal financial situation of S. More precisely, in its judgment of 10 June 2011, the High Court found, after having seen the programme and by quoting various voice- overs that: “With these statements, [the applicants] not only passed on assertions by patients, relatives and experts, but also took a stand, so that the programme undisputedly gave the viewers the impression that malpractice has occurred at Copenhagen University Hospital, in that S has deliberately used medication ( Vinorelbine ), which is not approved for treatment of pleural mesothelioma cancer, and whose effect has not been substantiated, that the medication in question was part of a test, and that the test medication has resulted in patients dying or having their lives shortened. The way that the programme is built up with its beginning and ending, the viewers get the clear impression that the reasons behind this choice of medication [ Vinorelbine ] were S ’ s professional prestige and personal finances. On this background, in the programme, the applicants, as producer of the programme and as chief sub-editor, have made an allegation against Copenhagen University Hospital and S of malpractice and of nourishing irrelevant considerations to the detriment of the lives and health of patients. Such an accusation is likely to disparage [Copenhagen University Hospital and S] in the eyes of their fellow citizens as set out in Article 267 of the Penal Code. It must have been clear to them [the applicants] that they made such an allegation by way of their presentation of the programme .” 62. It further concluded that those accusations rested on a factually incorrect basis: “ ... On the basis of the information in the case, including the research material, that the applicants possessed before the broadcast of the programme, in particular the emails from [the medical doctor from Grosshandorf Hospital in Germany and the professor from Switzerland], the replies by the Minister for Internal Affairs and Health to various questions [posed by Members of Parliament], and the memorandum of 11 June 2008 produced by Copenhagen University Hospital [about pleural mesothelioma cancer], it can be established that Vinorelbine in combination with Cisplatin or Carboplatin was standard treatment at Copenhagen University Hospital, that the European Union on 20 September 2004 approved the marketing of Alimta in connection with Cisplatin for treatment of inoperable patients with pleural mesothelioma cancer, that there was no substantiation or basis for believing that an Alimta -based treatment was more efficient than the treatment offered by Copenhagen University Hospital, that some patients at Copenhagen University Hospital, who were already about to receive Vinorelbine as standard treatment, were chosen and offered the same medicine as part of a test [it is not known for what], and that S did not make any private financial profit from these tests. Against this background, including the fact that the word ‘ approved ’ was not explained during the programme, namely the difference between medication approved for treatment and [medication] approved for marketing, and by consistently using the word “test medication”, even though only one patient in the programme participated in tests, [the applicants] made allegations which were based on a wrong factual basis, of which they must have been aware via the research material.” 63. The Court has no reason to call into question those conclusions reached by the High Court. 64. The Court is also satisfied that the accusations against S reached the level of seriousness required to fall within the scope of Article 8 of the Convention (see paragraph 52 above). 65. The Court reiterates that the potential impact of the medium of expression concerned is an important factor in the consideration of the proportionality of an interference and that the audio-visual media have a more immediate and powerful effect than the print media (see, for example, Jersild v. Denmark, judgment of 23 September 1994, § 31, Series A no. 298). The High Court found that it was an aggravating factor that the wrongful accusations were disseminated on national television during primetime and on DR ’ s homepage, by means of which the accusations had a significant spread. The Court notes, in addition, that the programme was broadcast by one of the two national television stations in Denmark and described as a “documentary”, which could add to the viewers ’ expectations that they would be presented with the truth. 66. The applicants maintained that the impact of their programme was significant and had various important consequences, inter alia, a public demand for Alimta therapy and a change in practice at Copenhagen University Hospital, all of which highlighted why this kind of journalism was essential and indispensable in a democratic society. 67. The Court points out, however, that the domestic courts assessed the material before them, which the applicants possessed, and concluded that there was no documentation to show that Alimta therapy in combination with a platin medicinal product was more effective than Vinorelbine therapy in combination with a platin medicinal product, nor was there substantiation or basis for believing that an Alimta -based treatment was more efficient than the treatment offered by Copenhagen University Hospital. The Court has found no reason to call into question those conclusions. 68. It therefore also accepts that the reason why, after the programme had been broadcast, the public demand for Alimta therapy may have increased and Copenhagen University Hospital changed its standard therapy for operable patients to Cisplatin in combination with Alimta, was that the programme, on an incorrect factual basis, had encouraged patients to mistrust Vinorelbine therapy, as also stated by S and H before the City Court. 69. The Court further observes that before the City Court, H added that the programme had created distrust towards both Copenhagen University Hospital and S, that it had created uncertainty in patients and relatives, and that he himself had subsequently received 50 to 100 “hate mails”. ( δ ) Method of obtaining the information and its veracity 70. Before the domestic courts, the applicants maintained that they acted in good faith and in full compliance with press ethics when preparing and airing the programme and that the documentary was based on substantive and significant journalistic research carried out over a period of approximately one year. It included international medical experts and a very broad range of open source material. The first applicant also stated that S and Copenhagen University Hospital had been invited to comment on the allegations in the documentary on numerous occasions. 71. The applicants had received the memorandum of 11 June 2008 (see paragraph 12 above) about pleural mesothelioma cancer and its treatment produced by Copenhagen University Hospital, which stressed that international studies, including of Vinorelbine and Alimta, had not shown that any two-combination regime was superior to other two ‑ combination regimes. That information was confirmed by the professor from Switzerland in an email of 25 June 2008 and by the medical doctor from Grosshandorf Hospital in Germany in an email of 27 June 2008 (see paragraph 13 above). The memorandum also referred to a fund aimed at developing research on pleural mesothelioma cancer, in the amount of DKK 90,000 received by S from company F, and stated that the money had been used to pay nurses and students and for data collection. It emerged that there had been no financial profit for the doctors involved. The applicants stated that they did not find the memorandum suitable for inclusion in their documentary as it did not answer the specific questions asked by them. 72. The Court notes that the domestic courts did not dispute that the applicants had conducted thorough research. As stated above, however, based on the particulars of the case, which included the research material, which the applicants had possessed before the programme was broadcast, they found that the applicants had made accusations resting on a factually incorrect basis, of which they must be deemed to have become aware through the research material. In conclusion, the High Court stated: “The aim of the programme – to make a critical assessment of the treatment of patients with pleural mesothelioma cancer offered by Copenhagen University Hospital and the responsible consultant – is a legitimate part of the press ’ s role as ‘ public watchdog ’, but it cannot justify an allegation, which is built on a factually wrong basis, and thus a wrong premise. [The applicants], who did not limit themselves to referring to or disseminating statements by experts, patients and relatives, did not have any basis for making such serious allegations against Copenhagen University Hospital and S ... ” 73. Again, the Court sees no reason to call into question the High Court ’ s conclusions. It reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the provision that they are acting 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, Bédat, cited above, § 58 ). 74. It notes in particular that there is no indication that the judicial authorities placed a disproportionate and unfair burden on the applicants, including, as alleged by them, requiring under criminal law that they provide medical documentation about Alimta compared to Vinorelbine. 75. Finally, the High Court stated that the allegations made by the applicants could not be justified by the fact that Copenhagen University Hospital and S refused to participate in the programme. The Court notes in addition that it is not in dispute that Copenhagen University Hospital participated and cooperated during the preparation of the programme, by replying to questions by the applicants and furnishing them with relevant information, including the memorandum of 11 June 2008 produced by S. In this respect the Court cannot ignore the statement by H before the City Court (see paragraph 19 above) that: “It is quite usual for Copenhagen University Hospital to surrender material to the press and to answer questions, but the questions of [the first applicant] were never-ending. Copenhagen University Hospital has spent about a man-year, or about DKK 400,000, on responding to inquiries from [the first applicant], and huge efforts were made to accommodate her requests”. ( ε ) Severity of the sanction imposed 76. The defamation proceedings brought by S and Copenhagen University Hospital against the applicants ended in an order declaring the allegations null and void, a criminal conviction of the applicants and a sentence for each of them amounting to 10 day-fines of DKK 1,000 ( a total of 10 000 DKK equal to approximately 1,340 euros (EUR) ). 77. The Court notes that a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies (see for example, Perinçek v. Switzerland [GC], no. 27510/08, § 273, ECHR 2015 (extracts). In the circumstances of the present case, however, the Court does not find the conviction and the sentence excessive or to be of such a kind as to have a “chilling effect” on the exercise of media freedom (see, inter alia, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 93, ECHR 2004 ‑ XI, with further references). 78. The applicants emphasised that they had also been punished by having to pay legal costs to S and Copenhagen University Hospital. Those costs amounted to DKK 62,250 (equal to approximately EUR 8,355) before the City Court and DKK 90,000 (equal to approximately EUR 12,080) before the High Court. The Court has found that the most careful scrutiny on the part of the Court is called for when measures taken by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see, for example, Jersild v. Denmark, cited above, § 35 and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III). In the present case, however, the Court finds that the decision that the applicants pay legal costs does not appear unreasonable or disproportionate (see, by contrast, MGN Limited v. the United Kingdom, no. 39401/04, § 219, 18 January 2011). ( ζ ) Conclusion 79. In the light of all the above-mentioned considerations, the Court considers that the domestic courts, and most recently the High Court in its judgment of 10 June 2011, balanced the right of freedom of expression with the right to respect for private life, and took into account the criteria set out in the Court ’ s case-law. The reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that the authorities of the respondent State acted within their margin of appreciation in striking a fair balance between the competing interests at stake. 80. The Court therefore concludes that 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 applicants’ defamation conviction had been justified. The Court agreed in particular with the Danish courts’ decisions, considering that they had struck a fair balance between the journalists’ right to freedom of expression and the hospital’s and the consultant’s right to protection of their reputation. In particular the Court saw no reason to call into question the domestic courts’ conclusion that the programme had been factually incorrect. It also agreed that those wrongful accusations, disseminated on primetime national television, had had considerable negative consequences, namely public mistrust in the chemotherapy used at the hospital. |
646 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW 25. Article 87 of the Constitution sets out the powers of the President of the Italian Republic. In particular, paragraph 11 provides: “The President may grant pardons and commute punishments.” 26. Article 174 of the Criminal Code provides: “The pardon or grace condones, in whole or in part, the penalty imposed, or commutes it into another penalty established by law. It does not extinguish the accessory penalties nor, unless the decree states otherwise, the other penal effects of the sentence”. 27. Article 57 of the Criminal Code, entitled “ Offences committed by means of the press”, provides: “Without prejudice to the liability of the author of the publication and unless complicity is involved, any editor-in-chief or deputy editor who fails to exercise, vis-à-vis the content of his periodical, the control required to prevent offences being committed by means of the publication shall be punished for negligence if an offence is committed, with the penalty for this offence reduced by a maximum of one-third. ” 28. Article 595 of the Criminal Code defines the offence of defamation. The relevant parts of that Article read as follows: “ (1) Anyone who ..., in communicating with more than one person, damages the reputation of another, shall be punished by one year ’ s imprisonment or by a fine of up to EUR 1,032. (2) Defamation which consists in imputing a specific fact shall be punishable by up to two years ’ imprisonment or by a fine of up to EUR 2,065. (3) Defamation which is disseminated by the press or any other form of publicity, or in a public document, shall be punishable by imprisonment of between six months and three years or by a fine of at least EUR 516. (4) In the event of defamation against a member of a political, administrative or judicial authority, or one of its representations ... the sentences shall be increased.” 29. Section 13 of Law no. 47 of 8 February 1948 (hereinafter “ the Press Act ”), published in Law Gazette no. 43 of 20 February 1948, as far as relevant, reads as follows: “ If the offence of defamation is committed through the press and consists in attributing a specific fact, the author shall be liable to imprisonment of [between] one and ... six years and a fine ...” 30. In their observations the Government pointed out that a defamation reform bill (Draft Bill no. 925) was currently under revision for a second reading before the Senate Standing Committee on Justice. Among other things, the draft proposes the removal of imprisonment as a sanction for defamation, and its replacement by a fine. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 34. The applicant argued that his conviction for defamation through the press ( diffamazione a mezzo stampa ) and for failure to exercise control over the content of the publication ( omesso controllo sul contenuto dell ’ articolo diffamatorio ) had breached Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 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 35. 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 36. The applicant challenged his conviction for defamation. He submitted that he had only been convicted because of the Public Prosecutor ’ s failure to conduct an appropriate investigation in order to find the writer of the anonymous article. In the applicant ’ s view, the conviction of the editor-in-chief of a newspaper had had the negative effect of impeding the publication of news in the public interest. The applicant further submitted that “ [on] the day the article was published [ he ] was absent and didn ’ t know anything about the article contested ”. 37. Turning to the proportionality between the offence committed and the sanction imposed, the applicant observed the following. 38. At the outset, he submitted that the domestic courts had not adopted a homogeneous approach with respect to the type of sanction to be imposed: in particular, the first-instance court had not found the detention “necessary”, finding the imposition of a financial sanction appropriate and sufficient; secondly, the applicant argued that the lack of subjective responsibility, the offence having been committed by another person, could not justify the “ cruelty ” of the sanction. 39. The applicant further submitted that the sanction imposed had seriously damaged his career. The proceedings instituted against him had led to him being suspended from his profession as a journalist for three months. Furthermore, he had been forced to resign from the position of editor-in-chief of another newspaper, Il Giornale, and, overall, his professional capacity had inevitably been affected. 40. The applicant also claimed he had suffered health problems as a result of his conviction. 41. Lastly, the applicant reiterated the reasons put forward by the President of the Italian Republic, who had taken the decision to commute his penalty into a fine (see paragraphs 21-23 above ). (b) The Government 42. The Government argued that the articles at issue were clearly defamatory since, in addition to reporting false information, they had been mainly intended to “ obscure and undermine the reputation of those involved in the facts of the case”. 43. The Government further argued that the right to freedom of expression and to impart information invoked by the applicant had violated the right to protection of one ’ s reputation in that the applicant had not only undermined G.C. ’ s reputation but first and foremost had violated the right to privacy of a thirteen-year old girl who “in a dramatic time in her adolescence had sought the [intervention of a] judge”, as well as of all those involved. 44. Turning to the applicant ’ s liability, the Government, after pointing out that as editor-in-chief he bore full responsibility for the content of the article published under the pseudonym, reiterated the reasons put forward by the domestic courts, in particular the Court of Cassation, in imposing the custodial sentence on the applicant (see paragraph 19 above). 45. In conclusion, the Government, relying on what the Court had previously stated in Fatullayev v. Azerbaijan, (no. 40984/07, § 95, 22 April 2010), affirmed that the applicant could not invoke the safeguards afforded by Article 10 to journalists since he had not acted in good faith and, even worse, had provided unreliable and false information. In the light of the foregoing observations, in the Government ’ s view, the imposition of detention had been proportionate. 2. The Court ’ s assessment (a) Whether there has been an interference 46. It is not in dispute between the parties that the applicant ’ s conviction constituted an interference with his right to freedom of expression under Article 10 § 1 of the Convention. 47. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims (see Peruzzi v. Italy, no. 39294/09, § 42, 30 June 2015, and the authorities cited therein). (b) Whether the interference was justified: “prescribed by law” and “legitimate aim” 48. The parties likewise agree that the interference was prescribed by law, namely by Articles 57 and 595 of the Criminal Code and section 13 of the Press Act (see paragraphs 2 6 -2 8 above). 49. Turning to the legitimacy of the aim pursued, it is not for the Court to assess whether the applicant ’ s conviction pursued the legitimate aim of protecting the judiciary, as the Court can accept that the interference in any case pursued the legitimate aim of protecting the reputation and rights of others, namely the thirteen-year old girl and her parents as well as those of G.C. ( see Belpietro v. Italy, no. 43612/10, §§ 45, 24 September 2013 ). 50. The parties differed as to whether the interference in question had been “necessary in a democratic society” and proportionate to the sanction imposed. The Court must therefore determine whether this requirement, as set forth in the second paragraph of Article 10, was satisfied in the instant case. (c) “Necessary in a democratic society” ( i ) General principles 51. The general principles concerning the necessity of an interference with freedom of expression are summarised in the cases of Morice v. France [GC], no. 29369/10, § § 124-139, ECHR 2015 and Belpietro ( cited above, §§ 47-54 ). 52. In particular, the Court points out that the test of “necessity in a democratic society” requires it to determine whether the interference complained of corresponded to a “pressing social need”, whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient” and whether the sanction imposed was “proportionate to the legitimate aim pursued” (see Belpietro, cited above, §§ 49-50). (ii) Application of the above principles to the present case 53. In the instant case the national courts found that the content of the articles had led to misinformation of the public, having given false information despite the clarifications disseminated the day prior to their publication. In addition, in the courts ’ view, the applicant had seriously tarnished G.C. ’ s honour and his right to privacy, as well as that of all those involved. 54. The Court sees no reason to depart from the above findings. 55. In particular, it cannot consider arbitrary or manifestly erroneous the assessment carried out by the national authorities, according to which the articles published by the applicant had attributed behaviour to G.C. involving a misuse of his official powers. Moreover, the Court observes that the case involved a minor and also contained defamatory statements against the parents and the doctors. 56. In addition, the Court agrees with the Government that the applicant failed to observe the ethics of journalism by reporting information without first checking its veracity. 57. Furthermore, the Court points out, as it has previously held (see Belpietro, cited above, §§ 58-59), that the head of a newspaper cannot be exempted from his duty to exercise control over the articles published therein and bears responsibility for their content. 58. In the light of the foregoing considerations, and having regard to the margin of appreciation left to the Contracting States in such matters, the Court finds that the domestic authorities were entitled to consider it necessary to restrict the exercise of the applicant ’ s right to freedom of expression and that his conviction for defamation and omesso controllo accordingly met a “pressing social need”. What remains to be determined is whether the interference at issue was proportionate to the legitimate aim pursued, in view of the sanctions imposed. 59. Although sentencing is in principle a matter for the national courts, the Court considers the imposition of a custodial sentence for a media-related offence, albeit suspended, compatible with journalists ’ freedom of expression as guaranteed by Article 10 of the Convention can only be in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see, Cumpănă and Mazăre v. Romania, [GC], no. 33348/96, § 115, ECHR 2004-XI ). In this connection, the Court notes the recent legislative initiatives by the Italian authorities aimed, in line with the recent rulings of the Court against Italy, at limiting the use of criminal sanctions for defamation, and introducing, as a notable positive step, the removal of imprisonment as a sanction for defamation (see paragraph 29). 60. In the present case, unlike in Belpietro and Ricci (Ricci v. Italy, no. 30210/06, §§ 59-61, 8 October 2013), the applicant, in addition to being ordered to pay compensation to the magistrate concerned, actually spent twenty-one days under house arrest before the intervention of the President of the Italian Republic (see paragraphs 21-24 above ). 61. In this connection, it may be relevant to note that in two similar cases (see Belpietro, cited above, §§ 61-63, and Ricci, cited above, §§ 59-61 ) the imposition of a custodial sentence (although suspended) led the Court to find a violation of Article 10. In particular, in Belpietro, the applicant, the then editor-in-chief of the newspaper Il Giornale, had been accused of defamation for omitting to exercise the necessary control over an article published by another person in the newspaper. On that occasion the Court held that a prison sentence could only be justified if there were exceptional circumstances, that not being the case since it concerned a lack of control in connection with defamation. 62. The Court considers that, in the circumstances of the instant case, there was no justification for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect (see, mutatis mutandis, Kapsis and Danikas v. Greece, no. 52137/12, § 40, 19 January 2017). The fact that the applicant ’ s prison sentence was suspended does not alter that conclusion, considering that the individual commutation of a prison sentence into a fine is a measure subject to the discretionary power of the President of the Italian Republic. Furthermore, while such an act of clemency dispenses convicted persons from having to serve their sentence, it does not expunge their conviction ( see paragraph 26 above; see also Cumpănă and Mazăre v. Romania, cited above, § 116, and Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009 ). 63. The foregoing considerations are sufficient to enable the Court to conclude that the criminal sanction imposed on the applicant was manifestly disproportionate in its nature and severity to the legitimate aim invoked. 64. The Court concludes that the domestic courts in the instant case went beyond what would have amounted to a “necessary” restriction on the applicant ’ s freedom of expression. The interference was thus not “necessary in a democratic society”. 65. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. 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 67. The applicant claimed EUR 100, 000 in respect of pecuniary and non-pecuniary damage. 68. The Government disputed this claim. They reiterated that there was “ no room ” for the applicant ’ s request since he had seriously infringed the fundamental rights of a minor, her parents and G.C. 69. The Court rejects the applicant ’ s claim for pecuniary damage as unsubstantiated since he has failed to produce any relevant information. On the other hand, having regard to the fact that the applicant must have suffered anguish and distress on account of the facts leading to the finding of a violation of Article 10 of the Convention, the Court awards him EUR 12, 000 in respect of non-pecuniary damage. B. Costs and expenses 70. The applicant also claimed EUR 14,591.20 for the costs and expenses incurred before the Court. 71. The Government did not comment on the applicant ’ s claim. 72. 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 for the proceedings before the Court. C. Default interest 73. 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 sentence following the applicant’s conviction for defamation had been manifestly disproportionate. It accepted that the interference with his right to freedom of expression had been intended to protect the reputation and rights of the 13-year old girl and her parents as well as those of the guardianship judge, and also agreed with the national courts’ findings that the articles under the applicant’s control had given false information, despite the clarifications reported the day before. He had thus seriously tarnished the honour and privacy rights of all those involved. The Court found however that there had been no justification for imposing a prison sentence and such a sanction had gone beyond what would have amounted to a “necessary” restriction on the applicant’s freedom of expression. |
655 | Private persons | II. RELEVANT DOMESTIC LAW, COMMENTARY AND PRACTICE A. The Criminal Code of the Republic of Serbia 1977 ( Krivični zakon Republike Srbije; published in the Official Gazette of the Socialist Republic of Serbia – OG SRS – nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89 and 42/89, as well as in the Official Gazette of the Republic of Serbia – OG RS – nos. 21/90, 16/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02 and 80/02) 34. The relevant provisions of this Code read as follows: Article 92 “Whoever, in relation to another, asserts or disseminates a falsehood which can damage his [or her] honour or reputation shall be fined or punished by imprisonment not exceeding six months. If an act described in [the above] paragraph has been committed through the press, via radio or television ... [or otherwise through the mass media] ... or at a public meeting, the perpetrator shall be punished by imprisonment not exceeding one year. ... If the defendant proves his [or her] claims to be true or if he [or she] proves that there were reasonable grounds to believe in the veracity of the claims which he [or she] had made or disseminated, he [or she] shall not be punished for defamation, but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence... Whoever, in relation to another, falsely claims or disseminates claims to the effect that he [or she] has committed a crime prosecuted ex officio, shall be punished for defamation even if there were reasonable grounds to believe in their veracity, unless such claims have been made or disseminated pursuant to Article 96 § 2 of this Code. The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded.” Article 96 §§ 1 and 2 “... [No one] ... shall ... be punished for insulting another person if he [or she] so does in a scientific, literary or artistic work, a serious critique, in the performance of his [or her] official duties, his [or her] journalistic profession, as part of a political or other social activity or in defence of a right or of a justified interest, if from the manner of his [or her] expression or other circumstances it transpires that there was no [underlying] intent to disparage. In situations referred to above, ... [the defendant] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio, even though there is no final judgment to that effect ..., if he [or she] proves that there were reasonable grounds to believe in the veracity of ... [those claims] ...” B. The Criminal Code of the Federal Republic of Yugoslavia ( Krivični zakon Savezne Republike Jugoslavije; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 4 6/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, as well as in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01 ) 35. The relevant provisions of this Code read as follows: Article 4 “ It is the criminal legislation which was in force at the time of commission of the crime in question that shall be applied to the perpetrator thereof. If the criminal legislation has been amended once or on several occasions thereafter, the legislation which is more favourable for the perpetrator shall be applied.” Article 51 “... [T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment ( suspended sentence) ... will ... [be sufficient to deter the offender] ... from committing any [other] criminal acts.” Article 52 § 1 “In handing down a suspended sentence, the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [specified] ... period of time which cannot be less than one or more than five years in all (period of suspension) ...” Article 53 § 4 “In deciding whether to impose a suspended sentence, the court shall take into account the purpose of [this] sentence, the personality of the offender, his [or her] conduct prior to and following the commission of the criminal act, the degree of his [or her] criminal liability, as well as other circumstances under which the act has been committed.” Article 54 §§ 1 and 2 “The court shall revoke the suspended sentence if, during the period of suspension, the convicted person commits one or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years. If, during the period of suspension, the convicted person commits one or more criminal acts and is sentenced to imprisonment for a term of less than two years or to a fine, the court shall, upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ...” Article 93 § 2 “A suspended sentence shall be expunged one year following the date of expiry of the period of suspension, if the convicted person does not commit another criminal act during this time.” Article 94 § 3 “When a conviction has been expunged, information about the conviction may ... be given ... [only] ... to the courts, the public prosecution service and the police in connection with an ongoing criminal case against the person ... [concerned] ... ” C. Subsequent criminal legislation 36. In 2005 the Serbian Parliament enacted a new Criminal Code ( Krivični zakonik ). It was published in OG RS no. 85/05 and entered into force on 1 January 2006, thus repealing the above - mentioned criminal legislation. The new Code provided for the offence of criminal defamation, in Article 171, but envisaged that only a fine, not a prison term, could be imposed on the perpetrators thereof. 37. The Criminal Code 2005 was amended on four occasions thereafter. Ultimately, the amendments adopted in 2012, which were published in OG RS no. 121/12 and entered into force on 1 January 2013, repealed Article 171 of the Criminal Code 2005. Criminal defamation thereby ceased to be a criminal offence in the Serbian legal system. D. The Obligations Act ( Zakon o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85, 45/89 and 57/89, as well as in OG FRY no. 31/93) 38. Under Articles 199 and 200, inter alia, anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 39. Article 200 § 2 provides, inter alia, that when deciding on the exact amount of compensation to be awarded, the courts must take into account all of the relevant circumstances. There is also long-standing domestic case-law to the effect that the courts must be vigilant not to give in to any lucrative animus when it comes to compensation claims filed in respect of alleged breaches of one ’ s reputation (see, for example, the decision of the Supreme Court of Yugoslavia, Rev. 277/66). E. The Civil Procedure Act 2004 ( Zakon o parničnom postupku; published in OG RS nos. 125/04 and 111/09 ) 40. Article 13 provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed, as well as concerning the criminal liability of the person convicted. An acquittal, however, does not rule out a civil suit for damages since the conditions for criminal and civil liability are different (see Komentar Zakona o parničnom postupku, Mr Svetislav R. Vuković, Poslovni biro, Belgrade, 2004, p. 18). F. The Enforcement Procedure Act 2004 (Zakon o izvršnom postupku; published in OG RS no. 125/04) 41. Article 156 § 1 provides, inter alia, that, as part of the enforcement procedure, up to two thirds of a debtor ’ s pension may be withheld. G. The Enforcement Procedure Act 2011 ( Zakon o izvršenju i obezbeđjenju, published in OG RS nos. 31/11 and 99/11) 42. Article 148 § 1 of this Act, in its relevant part, corresponds to the substance of Article 156 § 1 of the Enforcement Procedure Act 2004. 43. According to Article 363, the Enforcement Procedure Act 2011 entered into force on 18 September 2011, while pursuant to Article 358 § 1 all pending enforcement proceedings shall be completed on the basis of this new Act. H. The Statutory Interest Act 2001 ( Zakon o visini stope zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11) 44. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement. 45. Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly. 46. Article 3 § 1 sets out the exact method of calculating the interest in question. THE LAW I. JOINDER OF THE APPLICATIONS 51. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 52. The applicant complained, under Article 10 of the Convention, about the breach of her freedom of expression suffered due to her criminal conviction, the subsequent civil defamation judgment rendered against her, and, also, the way in which the latter was enforced domestically, causing her, as it did, extreme financial hardship, numerous health problems and even endangering her very life. The applicant additionally referred to Articles 3 and 8 of the Convention in this context, as well as to Article 1 of Protocol No. 1. 53. It being the “master of the characterisation” to be given in law to the facts of any case before it (see, for example, Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), the Court considers that this complaint primarily falls be examined under Article 10 of the Convention, which, insofar 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 ... for the protection of the reputation or rights of others ...” A. Admissibility 1. As regards the criminal proceedings 54. The Government maintained, inter alia, that since the proceedings before the Constitutional Court were still pending in this respect (see paragraphs 13 above), the applicant ’ s complaint regarding the criminal case brought against her had to be rejected on the grounds of non-exhaustion. 55. The applicant recalled that she had lodged her application (no. 4678/07) with the Court on 29 December 2006, at which time the constitutional appeal had still not been considered effective. 56. The Court recalls that it has consistently held that a constitutional appeal should, in principle, be deemed effective within the meaning of Article 35 § 1 of the Convention in respect of applications introduced against Serbia as of 7 August 2008 (see Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; see also Rakić and Others v. Serbia, no. 47460/07 and others, § 39, 5 October 2010, and Hajnal v. Serbia, no. 36937/06, §§ 122 and 123, 19 June 2012). It is understood, however, that any complaints concerning subsequent facts, including proceedings and/or decisions, shall have their own, “new”, introduction date. The mere fact that the applicant has relied on the same Article of the Convention in his or her application is not sufficient to validly raise all subsequent complaints made under that provision (see, for example, Allan v. United Kingdom (dec.), no. 48539/99, 28 August 2001; and Zervakis v. Greece (dec.), no. 64321/01, 17 October 2002). 57. In view of the above, the Court notes that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court accepted the applicant ’ s motion for their reopening (see paragraph 11 above). The subsequent criminal proceedings were concluded by 2 9 November 2011, hence post 7 August 2008, and the case before the Constitutional Court has been pending since 19 January 2012 (see paragraphs 12 and 13 above). In these circumstances, the applicant ’ s remaining complaint relating to the criminal proceedings following their reopening is premature and must, as such, be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of non-exhaustion. 2. As regards the civil and enforcement proceedings 58. 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 (as regards the civil and the enforcement proceedings ) 1. The parties ’ submissions 59. The Government admitted that the applicant ’ s freedom of expression had been restricted. This restriction, however, had been in accordance with the applicable domestic law and had pursued the legitimate aim of protecting the reputation of others. The competent civil courts had also properly assessed the facts and adequately applied the relevant domestic legislation. The applicant ’ s allegation to the effect that her lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case, had been a statement of fact in support of which no credible evidence had ever been offered. This statement had likewise not been given in any constructive social context, but merely as an expression of the applicant ’ s personal dissatisfaction. Further, Mr NB, being a practising lawyer, could not have remained passive in the face of such serious allegations undermining his very livelihood. Finally, the Government argued that neither the sum which had been awarded to Mr NB by the civil courts, consistent with damages awarded in other similar cases, nor the manner of its subsequent enforcement could be deemed disproportionate. While, admittedly, the applicant ’ s pension had been low this could not have absolved her from paying for the profound damage caused to Mr NB. In any event, approximately one third of the total principal sum due to be paid by the applicant consisted of the costs incurred by Mr NB in the course of the civil and enforcement proceedings. 60. The applicant reaffirmed her complaint. She added that the newspaper article was the journalist ’ s responsibility and that she had provided Ms SN with the relevant information but had never seen the piece before its publication. In any event, the fact remained that Mr NB had failed to adequately represent the applicant throughout the proceedings in question. The civil judgments rendered against the applicant amounted therefore to, at best, a disproportionate interference with her freedom of expression, particularly bearing in mind the pension-related deductions imposed in the course of the enforcement proceedings and considering her dire financial and medical situation. 2. The Court ’ s assessment 61. The 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 (see, among many other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)). Moreover, Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204 ). 62. The Court has repeatedly upheld the right to impart, in good faith, information on matters of public interest, even where this involved damaging statements about private individuals (see, mutatis mutandis, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, ECHR 1999 ‑ III). However, account must be taken of the distinction between factual statements on the one hand and value judgments on the other, since the existence of facts can be demonstrated whereas the truth of value judgments is not susceptible to proof (see, for example, Lingens v. Austria, judgment of 8 July 1986, § 46, Series A no. 103; and McVicar v. the United Kingdom, no. 46311/99, § 83, ECHR 2002 ‑ III). 63. The nature and severity of the sanction imposed, as well as the “relevance” and “sufficiency” of the national courts ’ reasoning, are matters of particular importance in assessing the proportionality of the interference under Article 10 § 2 (see Filipović, cited above, § 55). The amount of any compensation awarded must likewise “bear a reasonable relationship of proportionality to the ... [moral] ... injury ... suffered” by the plaintiff in question (see Tolstoy Miloslavsky, cited above, § 49; see also Steel and Morris v. the United Kingdom, no. 68416/01, § 96, ECHR 2005, where the Court held that the damages “awarded ... although relatively moderate by contemporary standards ... [ had been ] ... very substantial when compared to the modest incomes and resources of the ... applicants ... ” and, as such, in breach of the Convention). 64. Turning to the present case, the Court notes that both the final civil court judgment rendered against the applicant and the subsequent enforcement order undoubtedly constituted an interference with the applicant ’ s right to freedom of expression. Since they were based on the Obligations Act and the applicable enforcement procedure legislation, however, they were also clearly “prescribed by law” within the meaning of Article 10 § 2 of the Convention (see paragraphs 38 and 41-43 above). Lastly, the judgment in question, as well as the enforcement order, were adopted in pursuit of a legitimate aim, namely “for the protection of the reputation” of another. What remains to be resolved, therefore, is whether the interference was “necessary in a democratic society”. 65. In this respect the Court notes that the damages plus costs awarded against the applicant amounted to approximately EUR 4,900 and were, as such, equal to a total of more than sixty of the applicant ’ s monthly pensions calculated on the basis of the available information as of December 2006 (see paragraphs 15 and 5 above, in that order; see also, mutatis mutandis, Koprivica v. Montenegro, no. 41158/09, § § 73-75, 22 November 2011 ). This sum was also very similar to the amount awarded in a separate civil suit concerning the same issue brought against, inter alios, Dnevnik and the Autonomous Province of Vojvodina, as two certainly more financially viable legal entities (see paragraph 32 above). 66. Furthermore, while it is true that the criminal complaint filed by the police against Mr NB had been rejected by the Novi Sad Municipal Public Prosecutor ’ s Office, and that the applicant had been informed of this rejection on the grounds of prescription by 5 July 2002 (see paragraph 11 above), it cannot be said that her statement in respect of her former counsel had been merely a gratuitous personal attack. After all, the police had clearly seen some merit in these allegations and the applicant ’ s subsidiary prosecution was not rejected by the courts until 30 September 2004 ( ibid .), well after the publication of the impugned article on 12 December 2002 (see, mutatis mutandis, Koprivica, cited above, § 67, in fine ). Moreover, the Government ’ s proposition that a discussion of a practising lawyer ’ s professional conduct is clearly a matter of no public interest is in itself a dubious one, particularly bearing in mind the role of lawyers in the proper administration of justice. 67. Finally but most strikingly, on 14 July 2009 the Novi Sad Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to Mr NB ’ s bank account each month, until the sums awarded to him have been paid in full (see paragraph 26 above), all this notwithstanding that Article 156 § 1 of the Enforcement Procedure Act 2004 had provided that up to two thirds of a debtor ’ s pension might be withheld, thus clearly leaving room for a more nuanced approach (see paragraph 41 above). The said deductions began as of 8 August 2009, and by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 (see paragraphs 27 and 29 above). Nevertheless given the accrued and future interest, she will have to continue with the payments for approximately another two years (see paragraph 29 above). In May 2012 the applicant ’ s monthly pension was some EUR 170. After deductions, she was hence left with approximately EUR 60 on which to live and buy her monthly medication (see paragraph 28 above). Since the latter would cost her approximately EUR 44, she maintained, and the Government never contested this assertion, that she can no longer afford to buy it (see paragraph 31 above). This is in the Court ’ s opinion a particularly precarious situation for an elderly person suffering from a number of serious diseases (see paragraph 30 above). 68. In view of the above, the Court finds that the interference in question was not necessary in a democratic society. Accordingly, there has been a violation of Article 10 of the Convention. 69. Having regard to this finding, the Court further considers that it is also not necessary to examine separately the admissibility or the merits of the applicant ’ s essentially identical complaints made under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1. III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 70. Under Article 6 § 1 of the Convention, the applicant complained about the fairness and the length of the criminal proceedings prior to and after their reopening, the fairness and the length of the civil defamation proceedings, and the length of the proceedings before the Constitutional Court instituted on 29 May 2009. 71. Article 6 § 1, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law ... ” 72. The Government contested the admissibility, including on the grounds of non-exhaustion, and the merits of the above-alleged violations. A. The Court ’ s assessment as regards the criminal proceedings (i.e. the complaints made in app. no. 4678/07 lodged on 29 December 2006) 73. As already noted above, the Court is of the opinion that the original criminal proceedings brought against the applicant had ceased to be of relevance as of 29 July 2009, which was when the Municipal Court had ordered their reopening (see paragraphs 57 and 11 above, in that order). The applicant ’ s complaints as regards their fairness are therefore manifestly ill-founded and must, as such, be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 74. Concerning the length of the criminal proceedings prior to their reopening, the Court notes that the Convention had entered into force in respect of Serbia on 3 March 2004 and that by 19 July 2006 these proceedings had been terminated (see paragraph 9 above; see also Eckle v. Germany, 15 July 1982, § 84, Series A no. 51). The case in question had therefore lasted for a period of approximately two years and four months within the Court ’ s competence rarione temporis, during which time the charges brought against the applicant had been examined at two instances. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 75. Turning, lastly, to the issue of fairness and length of the criminal proceedings following their reopening, and for the reasons already explained at paragraphs 56 and 57 above, the Court considers that this part of the application is premature (see paragraph 13 above). It must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. B. The Court ’ s assessment as regards the civil and constitutional proceedings (i.e. the complaints made in app. no. 50591/12 lodged on 28 May 2012) 76. The Court notes that applicant has never specifically complained before the Constitutional Court about the length of the civil defamation suit (see paragraph 19 above). This complaint must therefore, bearing particularly in mind the date of its introduction, be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies ( see Vinčić, cited above, § 51; see also paragraph 56 above ). 77. Concerning the length of the proceedings before the Constitutional Court, it is recalled that the reasonableness of these proceedings must be assessed in the light of the specific circumstances of the case, regard being had in particular to its complexity, the parties ’ conduct, and the importance of the issues at stake for the applicant (see, for example, Šikić v. Croatia, no. 9143/08, § 35, 15 July 2010 ). It is further understood that its role of guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Šikić v. Croatia, no. 9143/08, § 37, 15 July 2010). Turning to the matter at hand, the Court notes that the impugned proceedings had been instituted on 29 May 2009 (see paragraph 19 above). Some two and a half years later, on 21 December 2011, the applicant was informed of the adoption of the decision in her case, although the decision itself would seem to have been served by 23 April 20 12 (see paragraph 24 above). Finally, the applicant ’ s constitutional complaint was of some complexity, and the applicant herself had repeatedly supplemented the original constitutional appeal with additional submissions (see paragraphs 19, 20 and 22 above). In such circumstances, the underlying civil defamation proceeding having themselves lasted for approximately two years and four months (see paragraphs 14-17 above) and despite the applicant ’ s advanced age and the seriousness of the issues at stake for her, the Court cannot but reject this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention (compare and contrast to, for example, Nikolac v. Croatia, no. 17117/06, § 17, 10 July 2008, Butković v. Croatia, no. 32264/03, § 27, 24 May 2007, and Šikić, cited above, § 37, where the Court found violations of the reasonable time requirement contained in Article 6 § 1 of the Convention in urgent cases involving labour-related and housing issues; the constitutional proceedings therein had lasted for approximately three years and four months, three years and six months, and three years and nine months, respectively, and considered together with the prior civil proceedings had lasted globally for approximately seven years, six and a half years, and five years within the Court ’ s competence ratione temporis respectively). IV. OBLIGATIONS UNDER ARTICLE 34 OF THE CONVENTION 78. The applicant noted that her former lawyer, who had represented her before the Court prior to Mr Dodig, had twice failed to receive the Court ’ s correspondence addressed to his office. The applicant maintained that the respondent State had every reason to engage in this interference, hoping that the Court would conclude that she had lost interest in her Strasbourg application. 79. The Government made no comment in this regard. 80. Article 34 of the Convention provides 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.” 81. According to the Court ’ s case-law, a complaint under Article 34 of the Convention does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000; and Ergi v. Turkey, judgment of 28 July 1998, § 105, Reports 1998-IV). 82. The Court notes that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of the individual effectively to present and pursue a complaint with the Court. While the obligation imposed is of a procedural nature distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of alleged infringements of it in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002). 83. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 that 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. 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 using a Convention remedy. The issue of whether or not contacts between the authorities and an applicant amount to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances ( ibid .). 84. Turning to the present case, the Court finds that there is an insufficient factual basis for it to conclude that the authorities of the respondent State have interfered in any way with the applicant ’ s exercise of her right of individual petition, it being noted that the Court cannot speculate as to who may have interfered with the correspondence addressed to the applicant ’ s former counsel and in which context (see, mutatis mutandis, Juhas Đurić v. Serbia, no. 48155/06, § 75, 7 June 2011). 85. In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 86. 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 87. The applicant claimed EUR 77 ,000 and EUR 7,000 in respect of pecuniary and non-pecuniary damage, respectively. 88. The Government contested these claims. 89. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6 ,000 in respect of the non- pecuniary damage suffered as a consequence of the violation of her rights guaranteed under Article 10 of the Convention. 90. As regards the pecuniary damage, the Court notes that in May 2012 the applicant ’ s monthly pension was approximately EUR 170. After deductions, the applicant was left with some EUR 60 on which to live. Further, by 30 June 2013 the applicant had paid a total of approximately EUR 4,350 through the enforcement proceedings. However, given the accrued and future interest, she will have to continue with the payments for approximately another two years, and pay an additional EUR 2,000. In these circumstances, having already found the said interference to be disproportionate within the meaning of Article 10 of the Convention and without speculating on the exact amount of damages and costs, plus interest, which might have been adequate, the Court considers it reasonable to award the applicant the additional sum of EUR 5,500 for the pecuniary damage suffered. B. Costs and expenses 91. The applicants also claimed a total of EUR 2,736 for the costs and expenses incurred domestically, as well as those incurred before the Court. 92. The Government contested this 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 have been actually and necessarily incurred and are also reasonable as to their quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,200 covering costs under all heads. C. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that, while the impugned measures had been prescribed by law and had been adopted in pursuit of a legitimate aim, namely for the protection of the reputation of another, this interference with the applicant’s right to freedom of expression had not been necessary in a democratic society. The Court noted in particular that it could not be said that the applicant’s statement in respect of her former counsel was merely a gratuitous personal attack. After all, the police had clearly seen some merit in the allegations. Moreover, the Serbian Government’s assertion that a discussion of a practising lawyer’s professional conduct was clearly of no public interest was in itself dubious, particularly bearing in mind the role of lawyers in the proper administration of justice. |
1,027 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Detention pending deportation before the passing of the 2001 Act 87. Under section 3(5) of the Immigration Act 1971 (“the 1971 Act”) the Secretary of State could make a deportation order against a non-national, on the ground that the deportation would be conducive to the public good, for reasons of national security, inter alia. A person who was the subject of a deportation order could be detained pending deportation ( the 1971 Act, Schedule 3, paragraph 2). However, it was held in R. v. Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 that the power to detain under the above provision was limited to such time as was reasonable to enable the process of deportation to be carried out. Detention was not, therefore, permissible under the 1971 Act where deportation was known to be impossible, whether because there was no country willing to take the person in question or because there would be a risk of torture or other serious ill-treatment to the proposed deportee in his or her country of origin. B. The Terrorism Act 2000 88. In July 2000 Parliament enacted the Terrorism Act 2000. As Lord Bingham noted in his judgment in the present case, “this was a substantial measure, with 131 sections and 16 Schedules, intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism”. “Terrorism” was defined, in section 1 of the Act, as: “ ... 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 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 or ideological cause. (2) Action falls within this subsection if it – (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. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section – (a) ’ action ’ includes action outside the United Kingdom; (b) a reference to any person or to property is a reference to any person, or to property, wherever situated; (c) a reference to the public includes a reference to the public of a country other than the United Kingdom; and (d) ’ the government ’ means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom. (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation. ” For the purposes of the Act, an organisation was “proscribed” if: “ 3.(1) ... (a) it is listed in Schedule 2; or (b) it operates under the same name as an organisation listed in that Schedule. (2) Subsection (1)(b) shall not apply in relation to an organisation listed in Schedule 2 if its entry is the subject of a note in that Schedule. (3) The Secretary of State may by order – (a) add an organisation to Schedule 2; (b) remove an organisation from that Schedule; (c) amend that Schedule in some other way. (4) The Secretary of State may exercise his power under subsection (3)(a) in respect of an organisation only if he believes that it is concerned in terrorism. (5) For the purposes of subsection (4) an organisation is concerned in terrorism if it – (a) commits or participates in acts of terrorism; (b) prepares for terrorism; (c) promotes or encourages terrorism; or (d) is otherwise concerned in terrorism.” 89. Part 2 of the Act created offences of membership and support of proscribed organisations; it created offences of fund - raising, use and possession of terrorist funds, entering into an arrangement for the transfer of terrorist funds, money - laundering and failing to disclose suspect money - laundering. There were a number of further substantive offences in Part 4, including offences of weapons training; directing terrorism; possession, without reasonable excuse, of items likely to be useful to a person committing or preparing an act of terrorism; and collection, without reasonable excuse, of information likely to be useful to a person committing or preparing an act of terrorism. By section 62, the Act had extraterritorial scope, in that a person within the jurisdiction of the United Kingdom might be prosecuted for any of the above offences regardless of where the acts in furtherance of those offences were committed. C. The Anti- terrorism, Crime and Security Act 2001 90. Part 4 of the 2001 Act (see paragraph 12 above), which was headed “Immigration and Asylum”, set out powers which enabled the detention of non-nationals suspected of being international terrorists, even where their deportation was for the time being impossible. The 2001 Act provided, so far as material: “PART 4 IMMIGRATION AND ASYLUM Suspected international terrorists 21. Suspected international terrorist: certification (1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably – (a) believes that the person ’ s presence in the United Kingdom is a risk to national security; and (b) suspects that the person is a terrorist. (2) In subsection (1)(b) ‘ terrorist ’ means a person who – (a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism; (b) is a member of or belongs to an international terrorist group; or (c) has links with an international terrorist group. (3) A group is an international terrorist group for the purposes of subsection (2)(b) and (c) if – (a) it is subject to the control or influence of persons outside the United Kingdom; and (b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism. (4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it. (5) In this Part – ‘ terrorism ’ has the meaning given by section 1 of the Terrorism Act 2000 (c. 11); and ‘ suspected international terrorist ’ means a person certified under subsection (1). (6) Where the Secretary of State issues a certificate under subsection (1) he shall as soon as is reasonably practicable – (a) take reasonable steps to notify the person certified; and (b) send a copy of the certificate to the Special Immigration Appeals Commission. (7) The Secretary of State may revoke a certificate issued under subsection (1). (8) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26. (9) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under – (a) section 25 or 26; or (b) section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeal). 22. Deportation, removal, etc. (1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of – (a) a point of law which wholly or partly relates to an international agreement; or (b) a practical consideration ... (2) The actions mentioned in subsection (1) are – ... (e) making a deportation order ... (3) Action of a kind specified in subsection (2) which has effect in respect of a suspected international terrorist at the time of his certification under section 21 shall be treated as taken again (in reliance on subsection (1) above) immediately after certification. 23. Detention (1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by – (a) a point of law which wholly or partly relates to an international agreement; or (b) a practical consideration ... (2) The provisions mentioned in subsection (1) are – (a) paragraph 16 of Schedule 2 to the Immigration Act 1971 (c. 77) (detention of persons liable to examination or removal); and (b) paragraph 2 of Schedule 3 to that Act (detention pending deportation).” Part 4 of the 2001 Act included a provision that the legislation would remain in force for five years only and was subject to an annual affirmative resolution by both Houses of Parliament. D. The Special Immigration Appeals Commission (SIAC) 91. SIAC was set up in response to the Court ’ s judgment in Chahal v. the United Kingdom ( [GC], 15 November 1996, Reports of Judgments and Decisions 1996-V). It is a tribunal composed of independent judges, with a right of appeal against its decisions on a point of law to the Court of Appeal and the House of Lords. By section 25 of the 2001 Act: “(1) A suspected international terrorist may appeal to the Special Immigration Appeals Commission against his certification under section 21. (2) On an appeal [SIAC] must cancel the certificate if – (a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1) (a) or (b); or (b) if it considers that for some other reason the certificate should not have been issued.” SIAC was required to carry out a first review to ensure that the certificate was still justified six months after the issue of the certificate or six months after the final determination of an appeal against certification, and thereafter at three-monthly intervals. Under section 30 of the 2001 Act, any legal challenge to the derogation under Article 15 of the Convention had also to be made to SIAC. 92. SIAC has a special procedure which enables it to consider not only material which can be made public (“open material”) but also material which, for reasons of national security, cannot (“closed material”). Neither the appellant nor his legal adviser can see the closed material. Accordingly, one or more security-cleared counsel, referred to as “special advocates”, are appointed by the solicitor -general to act on behalf of each appellant. 93. In the certification appeals before SIAC at issue in the present case, the open statements and evidence concerning each appellant were served first, and the special advocate could discuss this material with the appellant and his legal advisers and take instructions generally. Then the closed material would be disclosed to the judges and to the special advocate, from which point there could be no further contact between the latter and the appellant and/or his representatives, save with the permission of SIAC. It was the special advocate ’ s role during the closed sessions to make submissions on behalf of the appellant, both as regards procedural matters, such as the need for further disclosure, and as to the substance of the case. In respect of each appeal against certification, SIAC issued both an “open” and a “closed” judgment. The special advocate could see both but the detainee and his representatives could see only the open judgment. E. Declarations of incompatibility under the Human Rights Act 1998 94. Section 4 of the 1998 Act provides that where a court finds that primary legislation is in breach of the Convention, the court may make a declaration of incompatibility. Such a declaration does not affect the validity of the provision in respect of which it is made and is not binding on the parties to the proceedings in which it is made, but special arrangements may be made (section 10) to amend the provision in order to remove the incompatibility (see, further, Burden v. the United Kingdom [GC], no. 13378/05, §§ 21-24 and 40-44, ECHR 2008 ). F. The Terrorism Act 2006 95. The Terrorism Act 2006 came into force on 30 March 2006, creating a number of offences to extend criminal liability to acts preparatory to the terrorist offences created by the Terrorism Act 2000. The new offences were encouragement, dissemination of publications, preparation and training. The offences were designed to intervene at an early stage in terrorist activity and thus prevent the development of more serious conduct. They were also designed to be easier to prove. G. Consideration of the use of special advocates under the Prevention of Terrorism Act 2005 96. On 31 October 2007 the House of Lords gave judgment in Secretary of State for the Home Department (Respondent) v. MB (FC) (Appellant) [2007] UKHL 46, which concerned a challenge to a non-derogating control order made by the Secretary of State under sections 2 and 3(1)(a) of the Prevention of Terrorism Act 2005. The House of Lords had to decide, inter alia, whether procedures provided for by section 3 of the 2005 Act, involving closed hearings and special advocates, were compatible with Article 6 of the Convention, given that, in the case of one of the appellants, they had resulted in the case against him being in its essence entirely undisclosed, with no specific allegation of terrorism-related activity being contained in open material. The House of Lords was unanimous in holding that the proceedings in question determined civil rights and obligations and thus attracted the protection of Article 6. On the question of compliance, the majority (Baroness Hale, Lord Carswell and Lord Brown) held that although in many cases the special - advocate procedure would provide a sufficient counterbalance where the Secretary of State wished to withhold material upon which she wished to rely in order to establish the existence of reasonable grounds for suspecting that the controlee was or had been involved in terrorism-related activity, each case had to be considered individually. Baroness Hale put it as follows : “65. ... It would all depend upon the nature of the case; what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be; what steps had been taken to summarise the closed material in support without revealing names, dates or places; the nature and content of the material withheld; how effectively the special advocate had been able to challenge it on behalf of the controlled person; and what difference its disclosure might have made. All of these factors would be relevant to whether the controlled person had been ‘ given a meaningful opportunity to contest the factual basis ’ for the order. 66. I do not think that we can be confident that Strasbourg would hold that every control order hearing in which the special - advocate procedure had been used, as contemplated by the 2005 Act and Part 76 of the Civil Procedure Rules, would be sufficient to comply with Article 6. However, with strenuous efforts from all, difficult and time - consuming though it will be, it should usually be possible to accord the controlled person ‘ a substantial measure of procedural justice ’. Everyone involved will have to do their best to ensure that the ‘ principles of judicial inquiry ’ are complied with to the fullest extent possible. The Secretary of State must give as full as possible an explanation of why she considers that the grounds in section 2(1) are made out. The fuller the explanation given, the fuller the instructions that the special advocates will be able to take from the client before they see the closed material. Both judge and special advocates will have to probe the claim that the closed material should remain closed with great care and considerable scepticism. There is ample evidence from elsewhere of a tendency to over-claim the need for secrecy in terrorism cases: see Serrin Turner and Stephen J Schulhofer, The Secrecy Problem in Terrorism Trials, 2005, Brennan Centre for Justice at NYU School of Law. Both judge and special advocates will have stringently to test the material which remains closed. All must be alive to the possibility that material could be redacted or gisted in such a way as to enable the special advocates to seek the client ’ s instructions upon it. All must be alive to the possibility that the special advocates be given leave to ask specific and carefully tailored questions of the client. Although not expressly provided for in CPR r 76.24, the special advocate should be able to call or have called witnesses to rebut the closed material. The nature of the case may be such that the client does not need to know all the details of the evidence in order to make an effective challenge. 67. The best judge of whether the proceedings have afforded a sufficient and substantial measure of procedural protection is likely to be the judge who conducted the hearing. ... ” Lord Carswell observed: “There is a very wide spectrum of cases in which closed material is relied on by the Secretary of State. At one extreme there may be cases in which the sole evidence adverse to the controlee is closed material, he cannot be told what the evidence is or even given its gist and the special advocate is not in a position to take sufficient instructions to mount an effective challenge to the adverse allegations. At the other end there may be cases where the probative effect of the closed material is very slight or merely corroborative of strong open material and there is no obstacle to presenting a defence. There is an infinite variety of possible cases in between. The balance between the open material and the closed material and the probative nature of each will vary from case to case. The special advocate may be able to discern with sufficient clarity how to deal with the closed material without obtaining direct instructions from the controlee. These are matters for the judge to weigh up and assess in the process of determining whether the controlee has had a fair trial. The assessment is ... fact-specific. The judge who has seen both the open and the closed material and had the benefit of the contribution of the special advocate is in much the best position to make it. I do consider, however, that there is a fairly heavy burden on the controlee to establish that there has been a breach of Article 6, for the legitimate public interest in withholding material on valid security grounds should be given due weight. The courts should not be too ready to hold that a disadvantage suffered by the controlee through the withholding of material constitutes a breach of Article 6.” Lord Brown held as follows : “ There may perhaps be cases, wholly exceptional though they are likely to be, where, despite the best efforts of all concerned by way of redaction, anonymisation, and gisting, it will simply be impossible to indicate sufficient of the Secretary of State ’ s case to enable the suspect to advance any effective challenge to it. Unless in these cases the judge can nevertheless feel quite sure that in any event no possible challenge could conceivably have succeeded (a difficult but not, I think, impossible conclusion to arrive at ... ), he would have to conclude that the making or, as the case may be, confirmation of an order would indeed involve significant injustice to the suspect. In short, the suspect in such a case would not have been accorded even ‘ a substantial measure of procedural justice ’ ( Chahal, [cited above] § 131) notwithstanding the use of the special - advocate procedure; ‘ the very essence of [his] right [to a fair hearing] [will have been] impaired ’ ( Tinnelly & Sons Ltd [ and Others ] and McElduff and Others v. [ the ] United Kingdom, [cited below] § 72). ” Lord Bingham did not dissent but employed different reasoning. He held that it was necessary to look at the process as a whole and consider whether a procedure had been used which involved significant injustice to the controlee; while the use of special advocates could help to enhance the measure of procedural justice available to a controlled person, it could not fully remedy the grave disadvantages of a person not being aware of the case against him and not being able, therefore, effectively to instruct the special advocate. Lord Hoffmann, dissenting, held that once the trial judge had decided that disclosure would be contrary to the public interest, the use of special advocates provided sufficient safeguards for the controlee and there would never in these circumstances be a breach of Article 6. 97. In Secretary of State for the Home Department v. AF [2008] EWCA Civ 1148, the Court of Appeal (Sir Anthony Clark MR and Waller LJ; Sedley LJ dissenting), gave the following guidance, based on the majority opinions in the case of MB (see paragraph 96 above), regarding compliance with Article 6 in control order cases using special advocates (extract from the head - note) : “ (1) In deciding whether the hearing under section 3(10) of the 2005 Act infringed the controlee ’ s rights under Article 6 the question was whether, taken as a whole, the hearing was fundamentally unfair to the controlee, or he was not accorded a substantial measure of procedural justice or the very essence of his right to a fair hearing was impaired. More broadly, the question was whether the effect of the process was that the controlee was exposed to significant injustice. (2) All proper steps ought to be taken to provide the controlee with as much information as possible, both in terms of allegation and evidence, if necessary by appropriate gisting. (3) Where the full allegations and evidence were not provided for reasons of national security at the outset, the controlee had to be provided with a special advocate. In such a case the following principles applied. (4) There was no principle that a hearing would be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there was, the irreducible minimum could, depending on the circumstances, be met by disclosure of as little information as was provided in AF ’ s case, which was very little indeed. (5) Whether a hearing would be unfair depended on all the circumstances, including the nature of the case, what steps had been taken to explain the detail of the allegations to the controlled person so that he could anticipate what the material in support might be, what steps had been taken to summarise the closed material in support without revealing names, dates or places, the nature and content of the material withheld, how effectively the special advocate was able to challenge it on behalf of the controlee and what difference its disclosure would or might make. (6) In considering whether open disclosure to the controlee would have made a difference to the answer to whether there were reasonable grounds for suspicion that the controlee was or had been involved in terrorist - related activity, the court had to have fully in mind the problems for the controlee and the special advocates and take account of all the circumstances of the case, including what, if any, information was openly disclosed and how effective the special advocates were able to be. The correct approach to and the weight to be given to any particular factor would depend upon the particular circumstances. (7) There were no rigid principles. What was fair was essentially a matter for the judge, with whose decision the Court of Appeal would very rarely interfere. ” IV. OTHER RELEVANT COUNCIL OF EUROPE MATERIALS A. Council of Europe Parliamentary Assembly Resolution 1271 (2002) 106. On 24 January 2002 the Council of Europe ’ s Parliamentary Assembly adopted Resolution 1271 (2002) which resolved, in paragraph 9: “In their fight against terrorism, Council of Europe members should not provide for any derogations to the European Convention on Human Rights.” In paragraph 12, it also called on all member States to: “ ... refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security).” Apart from the United Kingdom, no other member State chose to derogate from Article 5 § 1 after 11 September 2001. B. The Committee of Ministers of the Council of Europe 107. Following its meeting on 14 November 2001 to discuss “Democracies facing terrorism” (CM/AS(2001) Rec 1534), the Committee of Ministers adopted on 11 July 2002 “Guidelines on human rights and the fight against terrorism”, which provided, inter alia : “ I. States ’ obligation to protect everyone against terrorism States are under the obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts, especially the right to life. This positive obligation fully justifies States ’ fight against terrorism in accordance with the present guidelines. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION AND OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 114. The applicants alleged that their detention under Part 4 of the 2001 Act breached their rights under Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” They further complained that they were denied an effective remedy for their Article 3 complaints, in breach of Article 13 of the Convention, which states: “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 115. The applicants stressed that each was in the United Kingdom because the opportunity of a safe haven in his own country or elsewhere was denied to him. The first applicant was a stateless Palestinian and had nowhere else to go. Several had experienced torture before coming to the United Kingdom. Under the 2001 Act they were put in the position of having to choose between conditions of detention which they found intolerable and the risk of whatever treatment they might have to suffer if they consented to deportation. Moreover, their previous experiences and pre-existing mental and physical problems made them particularly vulnerable to the ill effects of arbitrary detention. The discrimination they suffered, since only foreign nationals were subject to detention under the 2001 Act, compounded their anguish. 116. The high security conditions of detention, in Belmarsh Prison and Broadmoor Secure Mental Hospital, were inappropriate and damaging to their health. More fundamentally, however, the indeterminate nature of the detention, with no end in sight, and its actual long duration gave rise to abnormal suffering, in excess of that inherent in detention. This was compounded by other unusual aspects of the regime, such as the secret nature of the evidence against them. The fact that the indifference of the authorities to the applicants ’ situation was sanctioned by parliamentary statute did not mitigate their suffering. 117. Taken cumulatively, these factors caused the applicants an intense degree of anguish. The medical evidence and reports of the CPT and group of consultant psychiatrists (see paragraphs 101 and 76 above) demonstrated that the detention regime also harmed or seriously risked harming all of them and, in the case of the first, fifth, seventh and tenth applicants, did so extensively. 118. The applicants claimed that SIAC ’ s power to grant bail did not effectively function during the period when they were detained: firstly, because the scope of the remedy was jurisdictionally unclear; secondly, because the procedure was subject to delay; thirdly, because the threshold for granting bail was too high. An applicant for bail was required to demonstrate an “overwhelming likelihood” that his continued detention would lead to a physical or mental deterioration, such as to constitute inhuman and degrading treatment contrary to Article 3 of the Convention. The jurisdiction was described as “exceptional”, requiring the “circumstances to be extreme”. Even then, the only available remedy was to substitute house arrest for detention (see paragraph 79 above). 2. The Government 119. The Government denied that the applicants ’ rights under Article 3 had been infringed. They pointed out that SIAC and the Court of Appeal had rejected the applicants ’ complaints under Article 3 and that the House of Lords had not found it necessary to determine them (see paragraphs 15, 16 and 22 above). 120. Detention without charge was not in itself contrary to Article 3 and in many instances it was permitted under Article 5 § 1. The detention was indeterminate but not indefinite. The legislation remained in force for only five years and was subject to annual renewal by both Houses of Parliament. Each applicant ’ s detention depended on his individual circumstances continuing to justify it, including the degree of threat to national security which he represented and the possibility to deport him to a safe country, and was subject to review every six months by SIAC. Each applicant was informed of the reason for the suspicion against him and given as much of the underlying evidence as possible and provided with as fair a procedure as possible to challenge the grounds for his detention. Moreover, SIAC was able to grant bail if necessary. The applicants were not, therefore, detained without hope of release: on the contrary there was the opportunity to apply for release together with mandatory review by the court to ensure that detention remained both lawful and proportionate in all the circumstances. It also remained open to the applicants to leave the United Kingdom, as the second and fourth applicants chose to do. 121. The applicants were judged to pose a serious threat to national security and were accordingly held in high security conditions, which were not inhuman or degrading. Each was provided with appropriate treatment for his physical and mental health problems and the individual circumstances of each applicant, including his mental health, were taken into account in determining where he should be held and whether he should be released on bail. A Special Unit was created at Woodhill Prison of which the applicants refused to make use (see paragraph 71 above). 122. To the extent that the applicants relied on their individual conditions of detention and their personal circumstances, they had not exhausted domestic remedies because they had not made any attempt to bring the necessary challenges. Any specific complaint about the conditions of detention could have been the subject of separate legal challenge. The prison authorities were subject to the requirements of the 1998 Act (see paragraph 94 above) and had an obligation under section 6(1) to act compatibly with the Article 3 rights of the applicants in their custody. In so far as the applicants ’ complaints under Article 3 were based on the indeterminate nature of their detention, this was provided for by primary legislation (Part 4 of the 2001 Act), and Article 13 did not import the right to challenge in a domestic court a deliberate choice expressed by the legislature. B. The Court ’ s assessment 1. Admissibility 123. The Court observes that the second applicant was placed in detention under Part 4 of the 2001 Act on 19 December 2001 and that he was released on 22 December 2001, following his decision voluntarily to return to Morocco (see paragraph 35 above). Since he was, therefore, detained for only a few days and since there is no evidence that during that time he suffered any hardship beyond that inherent in detention, his complaint under Article 3 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Since Article 13 requires the provision of a domestic remedy in respect of “arguable complaints” under the Convention (see, for example, Ramirez Sanchez v. France [GC], no. 59450/00, § 157, ECHR 2006 -IX ), it follows that the second applicant ’ s complaint under Article 13 is also manifestly ill-founded. Both these complaints by the second applicant must therefore be declared inadmissible. 124. The Court notes the Government ’ s assertion that there was a remedy available to the applicants under the 1998 Act, which they neglected to use. However, since the applicants complain under Article 13 that the remedies at their disposal in connection with their Article 3 complaints were ineffective, the Court considers that it is necessary to consider the Government ’ s objection concerning non-exhaustion together with the merits of the complaints under Articles 3 and 13. 125. The Court considers that, save those of the second applicant, the applicants ’ complaints under Articles 3 and 13 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible. 2. The merits ( a ) General principles 126. The Court is acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence. This makes it all the more important to stress that Article 3 enshrines one of the most 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 § 2 notwithstanding the existence of a public emergency threatening the life of the nation. Even in the most difficult of circumstances, such as the fight against terrorism, and irrespective of the conduct of the person concerned, the Convention prohibits in absolute terms torture and inhuman or degrading treatment and punishment ( see Ramirez Sanchez, cited above, §§ 115-16). 127. 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 Kafkaris v. Cyprus [GC], no. 21906/04, § 95, ECHR 2008). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In considering whether a punishment or treatment was “degrading” within the meaning of Article 3, the Court will have regard to whether its object was to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. In order for a punishment or treatment associated with it to be “inhuman” or “degrading”, the suffering or humiliation involved must go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment ( see Ramirez Sanchez, cited above, §§ 118-19). 128. Where a person is deprived of his liberty, the State must ensure that he 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, cited above, §§ 92-94). Although Article 3 cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical and mental well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see Hurtado v. Switzerland, 28 January 1994, Series A no. 280-A, opinion of the Commission, § 79; Mouisel v. France, no. 67263/01, § 40, ECHR 2002-IX; Aerts v. Belgium, 30 July 1998, § 66, Reports 1998-V; and Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001-III ). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant ( see Ramirez Sanchez, cited above, § 119). The imposition of an irreducible life sentence on an adult, without any prospect of release, may raise an issue under Article 3, but where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient ( see Kafkaris, cited above, §§ 97-98). ( b ) Application to the facts of the present case 129. The Court notes that three of the applicants were held for approximately three years and three months while the others were held for shorter periods. During a large part of that detention, the applicants could not have foreseen when, if ever, they would be released. They refer to the findings of the Joint Psychiatric Report and contend that the indefinite nature of their detention caused or exacerbated serious mental health problems in each of them. The Government dispute this conclusion and rely on Dr J. ’ s report, which criticised the methodology of the authors of the Joint Report (see paragraphs 76 - 77 above). 130. The Court considers that the uncertainty regarding their position and the fear of indefinite detention must, undoubtedly, have caused the applicants great anxiety and distress, as it would virtually any detainee in their position. Furthermore, it is probable that the stress was sufficiently serious and enduring to affect the mental health of certain of the applicants. This is one of the factors which the Court must take into account when assessing whether the threshold of Article 3 was attained. 131. It cannot, however, be said that the applicants were without any prospect or hope of release (see Kafkaris, cited above, § 98). In particular, they were able to bring proceedings to challenge the legality of the detention scheme under the 2001 Act and were successful before SIAC on 30 July 2002, and before the House of Lords on 16 December 2004. In addition, each applicant was able to bring an individual challenge to the decision to certify him and SIAC was required by statute to review the continuing case for detention every six months. The Court does not, therefore, consider that the applicants ’ situation was comparable to an irreducible life sentence, of the type designated in the Kafkaris judgment as capable of giving rise to an issue under Article 3. 132. The applicants further contend that the conditions in which they were held contributed towards an intolerable level of suffering. The Court notes in this respect that the Joint Psychiatric Report also contained criticisms of the prison health -care system and concluded that there was inadequate provision for the applicants ’ complex health problems. These concerns were echoed by the CPT, which made detailed allegations about the conditions of detention and concluded that for some of the applicants, “their situation at the time of the visit could be considered as amounting to inhuman and degrading treatment”. The Government strongly disputed these criticisms in their response to the CPT ’ s report (see paragraphs 101 - 02 above). 133. The Court observes that each detained applicant had at his disposal the remedies available to all prisoners under administrative and civil law to challenge conditions of detention, including any alleged inadequacy of medical treatment. The applicants did not attempt to make use of these remedies and did not therefore comply with the requirement under Article 35 of the Convention to exhaust domestic remedies. It follows that the Court cannot examine the applicants ’ complaints about their conditions of detention; nor can it, in consequence, take the conditions of detention into account in forming a global assessment of the applicants ’ treatment for the purposes of Article 3. 134. In all the above circumstances, the Court does not find that the detention of the applicants reached the high threshold of inhuman and degrading treatment. 135. The applicants also complained that they did not have effective domestic remedies for their Article 3 complaints, in breach of Article 13. In this connection, the Court repeats its above finding that civil and administrative law remedies were available to the applicants had they wished to complain about their conditions of detention. As for the more fundamental aspect of the complaints, that the very nature of the detention scheme in Part 4 of the 2001 Act gave rise to a breach of Article 3, the Court reiterates that Article 13 does not guarantee a remedy allowing a challenge to primary legislation before a national authority on the ground of being contrary to the Convention ( see James and Others v. the United Kingdom, 21 February 1986, § 85, Series A no. 98, and Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X ). 136. In conclusion, therefore, the Court does not find a violation of Article 3, taken alone or in conjunction with Article 13. II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 137. The applicants contended that their detention was unlawful and incompatible with Article 5 § 1 of the Convention. 138. In their first set of written observations, following the communication of the application by the Chamber, the Government indicated that they would not seek to raise the question of derogation under Article 15 of the Convention as a defence to the claim based on Article 5 § 1, but would leave that point as determined against them by the House of Lords. Instead, they intended to focus their argument on the defence that the applicants were lawfully detained with a view to deportation, within the meaning of Article 5 § 1 (f). However, in their written observations to the Grand Chamber, dated 11 February 2008, the Government indicated for the first time that they wished to argue that the applicants ’ detention did not in any event give rise to a violation of Article 5 § 1 because the United Kingdom ’ s derogation under Article 15 was valid. 139. Article 5 § 1 of the Convention provides, in so far as relevant: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f) the lawful arrest or detention of a person ... against whom action is being taken with a view to deportation or extradition.” Article 15 of the Convention states: “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, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 ( paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.” A. The parties ’ submissions 1. The applicants 140. The applicants objected that before the domestic courts the Government had not sought to argue that they were detained as “person[s] against whom action is being taken with a view to deportation or extradition”, but had instead relied on the derogation under Article 15. In these circumstances, the applicants contended that it was abusive and contrary to the principle of subsidiarity for the Government to raise a novel argument before the Court and that they should be stopped from so doing. 141. In the event that the Court considered that it could entertain the Government ’ s submission, the applicants emphasised that the guarantee in Article 5 was of fundamental importance and exceptions had to be strictly construed. Where, as in their case, deportation was not possible because of the risk of treatment contrary to Article 3 in the receiving country, Article 5 § 1 (f) would not authorise detention, irrespective of whether the individual posed a risk to national security. Merely keeping the possibility of deportation under review was not “action ... being taken with a view to deportation”; it was action, unrelated to any extant deportation proceedings, that might make the deportation a possibility in the future. Detention pursuant to such vague and non-specific “action” would be arbitrary. Moreover, it was clear that during the periods when the applicants ’ cases were being considered by SIAC on appeal (July 2002-October 2003), the Government ’ s position was that they could not be deported compatibly with Article 3 and that no negotiations to effect deportation should be attempted with the proposed receiving States. As a matter of fact, therefore, the Government were not keeping the possibility of deporting the applicants “under active review”. 142. The applicants further contended that it was abusive of the Government, so late in the proceedings before the Grand Chamber, to challenge the House of Lords ’ decision quashing the derogation. In the applicants ’ view, it would be inconsistent with Article 19 and the principle of subsidiarity for the Court to be asked by a Government to review alleged errors of fact or law committed by that Government ’ s own national courts. The Government ’ s approach in challenging the findings of its own Supreme Court about legislation which Parliament had chosen to repeal aimed to limit the human rights recognised under domestic law and was thus in conflict with Article 53 of the Convention. Since the legislation had been revoked and the derogation withdrawn, the Government were in effect seeking to obtain from the Court an advisory opinion to be relied on potentially at some later stage. To allow the Government to proceed would impact substantially on the right of individual petition under Article 34 by deterring applicants from making complaints for fear that governments would try to upset the decisions of their own Supreme Courts. 143. In the event that the Court decided to review the legality of the derogation, the applicants contended that the Government should not be permitted to rely on arguments which they had not advanced before the domestic courts. These included, firstly, the contention that it was justifiable to detain non-national terrorist suspects while excluding nationals from such measures, because of the interest in cultivating loyalty among Muslim citizens, rather than exposing them to the threat of detention and the risk that they would thereby become radicalised and, secondly, the argument that the use of detention powers against foreign nationals freed up law enforcement resources to concentrate on United Kingdom nationals (see paragraph 151 below). Since the Government were seeking to introduce these justifications for the derogation which were never advanced before the domestic courts, the Court was being asked to act as a first-instance tribunal on highly controversial matters. 144. Again, if the Court decided to examine the legality of the derogation, there was no reason to give special deference to the findings of the national courts on the question whether there was an emergency within the meaning of Article 15. In the applicants ’ submission, there were no judicial precedents for recognising that an inchoate fear of a terrorist attack, which was not declared to be imminent, was sufficient. All the examples in the Convention jurisprudence related to derogations introduced to combat ongoing terrorism which quite clearly jeopardised the entire infrastructure of Northern Ireland or south- east Turkey. The domestic authorities were wrong in interpreting Article 15 as permitting a derogation where the threat was not necessarily directed at the United Kingdom but instead at other nations to which it was allied. 145. In any event, the enactment of Part 4 of the 2001 Act and the power contained therein to detain foreign nationals indeterminately without charge was not “strictly required by the exigencies of the situation”, as the House of Lords found. The impugned measures were not rationally connected to the need to prevent a terrorist attack on the United Kingdom and they involved unjustifiable discrimination on grounds of nationality. SIAC – which saw both the closed and open material on the point – concluded that there was ample evidence that British citizens posed a very significant threat. There could be no grounds for holding that the fundamental right of liberty was less important for a non-national than a national. Aliens enjoyed a right of equal treatment outside the context of immigration and political activity, as a matter of well - established domestic, Convention and public international law. There were other, less intrusive, measures which could have been used to address the threat : for example, the use of control orders as created by the Prevention of Terrorism Act 2005; the creation of additional criminal offences to permit for the prosecution of individuals engaged in preparatory terrorist activity; or the lifting of the ban on the use of material obtained by the interception of communications in criminal proceedings. 2. The Government 146. The Government contended that States have a fundamental right under international law to control the entry, residence and expulsion of aliens. Clear language would be required to justify the conclusion that the Contracting States intended through the Convention to give up their ability to protect themselves against a risk to national security created by a non-national. As a matter of ordinary language, “action being taken with a view to deportation” covered the situation where a Contracting State wished to deport an alien, actively kept that possibility under review and only refrained from doing so because of contingent, extraneous circumstances. In Chahal v. the United Kingdom ( 15 November 1996, Reports 1996 ‑ V ), a period of detention of over six years, including over three years where the applicant could not be removed because of an interim measure requested by the Commission, was held to be acceptable under Article 5 § 1 (f). 147. Each applicant was served a notice of intention to deport at the same time as he was certified under the 2001 Act. The second and fourth applicants elected to go to Morocco and France respectively, and were allowed to leave the United Kingdom as soon as could be arranged, so no issue could arise under Article 5 § 1 in their respect. The possibility of deporting the other applicants was kept under active review throughout the period of their detention. This involved monitoring the situation in their countries of origin. Further, from the end of 2003 onwards the Government were in negotiation with the governments of Algeria and Jordan, with a view to entering into memoranda of understanding that the applicants who were nationals of those countries would not be ill-treated if returned. 148. The Government relied on the principle of fair balance, which underlies the whole Convention, and reasoned that sub-paragraph (f) of Article 5 § 1 had to be interpreted so as to strike a balance between the interests of the individual and the interests of the State in protecting its population from malevolent aliens. Detention struck that balance by advancing the legitimate aim of the State to secure the protection of the population without sacrificing the predominant interest of the alien to avoid being returned to a place where he faced torture or death. The fair balance was further preserved by providing the alien with adequate safeguards against the arbitrary exercise of the detention powers in national security cases. 149. In the alternative, the detention of the applicants was not in breach of the Convention because of the derogation under Article 15. There was a public emergency threatening the life of the nation at the relevant time. That assessment was subjected to full scrutiny by the domestic courts. The evidence in support, both open and closed, was examined by SIAC in detail, with the benefit of oral hearings at which witnesses were cross-examined. SIAC unanimously upheld the Government ’ s assessment, as did the unanimous Court of Appeal and eight of the nine judges in the House of Lords. In the light of the margin of appreciation to be afforded to the national authorities on this question, there was no proper basis on which the Court could reach a different conclusion. 150. The Government explained that they accorded very great respect to the House of Lords ’ decision and declaration of incompatibility and that they had repealed the offending legislation. Nonetheless, when the decision was made to refer the case to the Grand Chamber, they decided that it was necessary to challenge the House of Lords ’ reasoning and conclusions, bearing in mind the wide constitutional importance of the issue and the ongoing need for Contracting States to have clear guidance from the Grand Chamber as to the measures they might legitimately take to try to prevent the terrorist threat from materialising. They submitted that the House of Lords had erred in affording the State too narrow a margin of appreciation in assessing what measures were strictly necessary; in this connection it was relevant to note that Part 4 of the 2001 Act was not only the product of the judgment of the Government but was also the subject of debate in Parliament. Furthermore, the domestic courts had examined the legislation in the abstract, rather than considering the applicants ’ concrete cases, including the impossibility of removing them, the threat each posed to national security, the inadequacy of enhanced surveillance or other controls short of detention and the procedural safeguards afforded to each applicant. 151. Finally, the House of Lords ’ conclusion had turned not on a rejection of the necessity to detain the applicants but instead on the absence of a legislative power to detain also a national who posed a risk to national security and was suspected of being an international terrorist. However, there were good reasons for detaining only non-nationals and the Convention expressly and impliedly recognised that distinction was permissible between nationals and non-nationals in the field of immigration. The primary measure which the Government wished to take against the applicants was deportation, a measure permitted against a non-national but not a national. The analogy drawn by the House of Lords between “foreigners [such as the applicants] who cannot be deported” and “British nationals who cannot be deported” was false, because the applicants at the time of their detention were not irremovable in the same way that a British citizen is irremovable. Furthermore, at the relevant time the Government ’ s assessment was that the greater risk emanated from non-nationals and it was legitimate for a State, when dealing with a national emergency, to proceed on a step-by-step basis and aim to neutralise what was perceived as the greatest threat first, thereby also freeing resources to deal with the lesser threat coming from British citizens. In addition, it was reasonable for the State to take into account the sensitivities of its Muslim population in order to reduce the chances of recruitment among them by extremists. 3. The third party, Liberty 152. Liberty (see paragraph 6 above) submitted that, by reserving before the domestic courts the issue whether the detention was compatible with Article 5 § 1, the Government had deprived the Court of the benefit of the views of the House of Lords and had pursued a course of action which would not be open to an applicant. In any event, the detention did not fall within the exception in Article 5 § 1 (f), since Part 4 of the 2001 Act permitted indefinite detention and since there was no tangible expectation of being able to deport the applicants during the relevant time. If the Government were unable to remove the applicants because of their Article 3 rights, they could not properly rely on national security concerns as a basis for diluting or modifying their Article 5 rights. Instead, the proper course was either to derogate from Article 5 to the extent strictly required by the situation or to prosecute the individuals concerned with one of the plethora of criminal terrorist offences on the United Kingdom ’ s statute books, which included professed membership of a proscribed organisation, failure to notify the authorities of suspected terrorist activity, possession of incriminating articles and indirect encouragement to commit, prepare or instigate acts of terrorism (see paragraphs 89 and 95 above). B. The Court ’ s assessment 1. The scope of the case before the Court 153. The Court must start by determining the applicants ’ first preliminary objection, according to which the Government should be precluded from raising a defence to the complaints under Article 5 § 1 based on the exception in sub - paragraph 5 § 1 (f), on the ground that they did not pursue it before the domestic courts. 154. The Court is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 4 2, ECHR 2008 ). It is thus of importance that the arguments put by the Government before the national courts should be on the same lines as those put before this Court. In particular, it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts (see, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 47, Series A no. 222, and Kolompar v. Belgium, 24 September 1992, §§ 31-32, Series A no. 235-C). 155. The Court does not, however, consider that the Government are estopped from seeking to rely on sub-paragraph (f) of Article 5 § 1 to justify the detention. It is clear that the Government expressly kept open, in the text of the derogation and during the derogation proceedings before the domestic courts, the question of the application of Article 5. Moreover, the majority of the House of Lords either explicitly or impliedly considered whether the detention was compatible with Article 5 § 1 before assessing the validity of the derogation (see paragraph 17 above). 156. The applicants further contended that the Government should not be permitted to dispute before the Court the House of Lords ’ finding that the derogation was invalid. 157. The present situation is, undoubtedly, unusual in that Governments do not normally resort to challenging, nor see any need to contest, decisions of their own highest courts before this Court. There is not, however, any prohibition on a Government making such a challenge, particularly if they consider that the national Supreme Court ’ s ruling is problematic under the Convention and that further guidance is required from the Court. 158. In the present case, because a declaration of incompatibility under the Human Rights Act 1998 is not binding on the parties to the domestic litigation (see paragraph 94 above), the applicants ’ success in the House of Lords led neither to their immediate release nor to the payment of compensation for unlawful detention and it was therefore necessary for them to lodge the present application. The Court does not consider that there is any reason of principle why, since the applicants have requested it to examine the lawfulness of their detention, the Government should not now have the chance to raise all the arguments open to them to defend the proceedings, even if this involves calling into question the conclusion of their own Supreme Court. 159. The Court therefore dismisses the applicants ’ two preliminary objections. 2. Admissibility 160. The Court considers that the applicants ’ complaints under Article 5 § 1 of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible. 3. The merits 161. The Court must first ascertain whether the applicants ’ detention was permissible under Article 5 § 1 (f), because if that sub - paragraph does provide a defence to the complaints under Article 5 § 1, it will not be necessary to determine whether or not the derogation was valid ( see Ireland v. the United Kingdom, 18 January 1978, § 191, Series A no. 25). ( a ) Whether the applicants were lawfully detained in accordance with Article 5 § 1 (f) of the Convention 162. Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty ( see Aksoy v. Turkey, 18 December 1996, § 76, Reports 1996-VI). The text of Article 5 makes it clear that the guarantees it contains apply to “everyone”. 163. Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which persons may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds ( see Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008). One of the exceptions, contained in sub - paragraph (f), permits the State to control the liberty of aliens in an immigration context ( ibid ., § 64). The Government contend that the applicants ’ detention was justified under the second limb of that sub - paragraph and that they were lawfully detained as persons “against whom action is being taken with a view to deportation or extradition”. 164. Article 5 § 1 (f) 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, cited above, § 113 ). The deprivation of liberty must also be “lawful”. 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 of national law. 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. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention ( see Saadi, cited above, § 67). 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, mutatis mutandis, Saadi, cited above, § 74). 165. The first, third, and sixth applicants were taken into detention under the 2001 Act on 19 December 2001; the seventh applicant was detained on 9 February 2002; the eighth applicant on 23 October 2002; the ninth applicant on 22 April 2002; the tenth applicant on 14 January 2003; and the eleventh applicant on 2 October 2003. None of these applicants was released until 10-11 March 2005. The fifth applicant was detained between 1 9 December 2001 and 22 April 2004, when he was released on bail subject to stringent conditions. The second and fourth applicants were also detained on 19 December 2001 but the second applicant was released on 22 December 2001, following his decision to return to Morocco, and the fourth applicant was released on 13 March 2002, following his decision to go to France. The applicants were held throughout in high security conditions at either Belmarsh or Woodhill Prisons or Broadmoor Secure Mental Hospital. It cannot, therefore, be disputed that they were deprived of their liberty within the meaning of Article 5 § 1 ( see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22). 166. The applicants were foreign nationals whom the Government would have deported from the United Kingdom had it been possible to find a State to receive them where they would not face a real risk of being subjected to treatment contrary to Article 3 of the Convention ( see Saadi v. Italy [GC], no. 37201/06, §§ 125 and 127, ECHR 2008). Although the respondent State ’ s obligations under Article 3 prevented the removal of the applicants from the United Kingdom, the Secretary of State nonetheless considered it necessary to detain them for security reasons, because he believed that their presence in the country was a risk to national security and suspected that they were or had been concerned in the commission, preparation or instigation of acts of international terrorism and were members of, belonged to or had links with an international terrorist group. Such detention would have been unlawful under domestic law prior to the passing of Part 4 of the 2001 Act, since the 1984 judgment in Hardial Singh entailed that the power of detention could not be exercised unless the person subject to the deportation order could be deported within a reasonable time (see paragraph 87 above). Thus, it was stated in the derogation notice lodged under Article 15 of the Convention that extended powers were required to arrest and detain a foreign national “ where removal or deportation is not for the time being possible, with the consequence that the detention would be unlawful under existing domestic - law powers ” (see paragraph 11 above). 167. One of the principal assumptions underlying the derogation notice, the 2001 Act and the decision to detain the applicants was, therefore, that they could not be removed or deported “for the time being” (see paragraphs 11 and 90 above). There is no evidence that during the period of the applicants ’ detention there was, except in respect of the second and fourth applicants, any realistic prospect of their being expelled without this giving rise to a real risk of ill-treatment contrary to Article 3. Indeed, the first applicant is stateless and the Government have not produced any evidence to suggest that there was another State willing to accept him. It does not appear that the Government entered into negotiations with Algeria or Jordan, with a view to seeking assurances that the applicants who were nationals of those States would not be ill-treated if returned, until the end of 2003 and no such assurance was received until August 2005 (see paragraph 86 above). In these circumstances, the Court does not consider that the respondent Government ’ s policy of keeping the possibility of deporting the applicants “under active review” was sufficiently certain or determinative to amount to “action ... being taken with a view to deportation”. 168. The exceptions to this conclusion were the second applicant, who was detained for only three days prior to his return to Morocco, and the fourth applicant, who left the United Kingdom for France on 13 March 2002, having been detained for just under three months (see paragraphs 35 and 41 above). The Court considers that during these periods of detention it could reasonably be said that action was being taken against these applicants with a view to deportation, in that it appears that the authorities were still at that stage in the course of establishing their nationalities and investigating whether their removal to their countries of origin or to other countries would be possible (see Gebremedhin [Gaberamadhien ] v. France, no. 25389/05, § 74, ECHR 2007 -II ). Accordingly, there has been no violation of Article 5 § 1 of the Convention in respect of the second and fourth applicants. 169. It is true that even the applicants who were detained the longest were not held for as long as the applicant in Chahal (cited above), where the Court found no violation of Article 5 § 1 despite his imprisonment for over six years. However, in the Chahal case, throughout the entire period of the detention, proceedings were being actively and diligently pursued, before the domestic authorities and the Court, in order to determine whether it would be lawful and compatible with Article 3 of the Convention to proceed with the applicant ’ s deportation to India. The same cannot be said in the present case, where the proceedings have, instead, been primarily concerned with the legality of the detention. 170. In the circumstances of the present case it cannot be said that the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants were persons “against whom action [was] being taken with a view to deportation or extradition”. Their detention did not, therefore, fall within the exception to the right to liberty set out in Article 5 § 1 (f) of the Convention. This is a conclusion which was also, expressly or impliedly, reached by a majority of the members of the House of Lords (see paragraph 17 above). 171. It is, instead, clear from the terms of the derogation notice and Part 4 of the 2001 Act that the applicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat to national security. The Court does not accept the Government ’ s argument that Article 5 § 1 permits a balance to be struck between the individual ’ s right to liberty and the State ’ s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court ’ s jurisprudence under sub-paragraph (f) but also with the principle that sub- paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the sub- paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee. 172. The Court reiterates that it has, on a number of occasions, found internment and preventive detention without charge to be incompatible with the fundamental right to liberty under Article 5 § 1, in the absence of a valid derogation under Article 15 (see Lawless v. Ireland ( no. 3), 1 July 1961, pp. 34-36, §§ 13 -14, Series A no. 3, and Ireland v. the United Kingdom, cited above, §§ 194-96 and 212-13). It must now, therefore, consider whether the United Kingdom ’ s derogation was valid. ( b ) Whether the United Kingdom validly derogated from its obligations under Article 5 § 1 of the Convention ( i ) The Court ’ s approach 173. The Court reiterates 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 better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities. Nonetheless, Contracting Parties do not enjoy an unlimited discretion. It is for the Court to rule 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. In exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation ( see Ireland v. the United Kingdom, cited above, § 207; Brannigan and McBride v. the United Kingdom, 26 May 1993, § 43, Series A no. 258 -B; and Aksoy, cited above, § 68). 174. The object and purpose underlying the Convention, as set out in Article 1, is that the rights and freedoms should be secured by the Contracting State within its jurisdiction. It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, with the Court exercising a supervisory role subject to the principle of subsidiarity ( see Z and Others v. the United Kingdom [GC], no. 29392/95, § 103, ECHR 2001 ‑ V). Moreover, the domestic courts are part of the “national authorities” to which the Court affords a wide margin of appreciation under Article 15. In the unusual circumstances of the present case, where the highest domestic court has examined the issues relating to the State ’ s derogation and concluded that there was a public emergency threatening the life of the nation but that the measures taken in response were not strictly required by the exigencies of the situation, the Court considers that it would be justified in reaching a contrary conclusion only if satisfied that the national court had misinterpreted or misapplied Article 15 or the Court ’ s jurisprudence under that Article or reached a conclusion which was manifestly unreasonable. ( ii ) Whether there was a “public emergency threatening the life of the nation” 175. The applicants argued that there had been no public emergency threatening the life of the British nation, for three main reasons: firstly, the emergency was neither actual nor imminent; secondly, it was not of a temporary nature; and, thirdly, the practice of other States, none of which had derogated from the Convention, together with the informed views of other national and international bodies, suggested that the existence of a public emergency had not been established. 176. The Court reiterates that in Lawless ( cited above, § 28 ), it held that in the context of Article 15 the natural and customary meaning of the words “other public emergency threatening the life of the nation” was sufficiently clear and that they referred to “ an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed ”. In the Greek case ( Denmark, Norway, Sweden and the Netherlands v. Greece, nos. 3321/67, 3322/67, 3323/67 and 3344/67, Commission ’ s report of 5 November 1969, Yearbook 12, p. 70, § 1 1 3 ), the Commission held that, in order to justify a derogation, the emergency should be actual or imminent; that it should affect the whole nation to the extent that the continuance of the organised life of the community was threatened; and that the crisis or danger should be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, were plainly inadequate. In Ireland v. the United Kingdom ( cited above, § § 205 and 212 ), the parties were agreed, as were the Commission and the Court, that the Article 15 test was satisfied, since terrorism had for a number of years represented “ a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province ’ s inhabitants”. The Court reached similar conclusions as regards the continuing security situation in Northern Ireland in Brannigan and McBride ( cited above ) and Marshall v. the United Kingdom ( (dec.), no. 41571/98, 10 July 2001 ). In Aksoy ( cited above ), it accepted that Kurdish separatist violence had given rise to a “public emergency” in Turkey. 177. Before the domestic courts, the Secretary of State adduced evidence to show the existence of a threat of serious terrorist attacks planned against the United Kingdom. Additional closed evidence was adduced before SIAC. All the national judges accepted that the danger was credible ( with the exception of Lord Hoffmann, who did not consider that it was of a nature to constitute “a threat to the life of the nation” – see paragraph 18 above). Although when the derogation was made no al - Qaeda attack had taken place within the territory of the United Kingdom, the Court does not consider that the national authorities can be criticised, in the light of the evidence available to them at the time, for fearing that such an attack was “imminent”, in that an atrocity might be committed without warning at any time. The requirement of imminence cannot be interpreted so narrowly as to require a State to wait for disaster to strike before taking measures to deal with it. Moreover, the danger of a terrorist attack was, tragically, shown by the bombings and attempted bombings in London in July 2005 to have been very real. Since the purpose of Article 15 is to permit States to take derogating measures to protect their populations from future risks, the existence of the threat to the life of the nation must be assessed primarily with reference to those facts which were known at the time of the derogation. The Court is not precluded, however, from having regard to information which comes to light subsequently (see, mutatis mutandis, Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 107(2), Series A no. 215). 178. While the United Nations Human Rights Committee has observed that measures derogating from the provisions of the International Covenant on Civil and Political Rights must be of “an exceptional and temporary nature” (see paragraph 110 above), the Court ’ s case-law has never, to date, explicitly incorporated the requirement that the emergency be temporary, although the question of the proportionality of the response may be linked to the duration of the emergency. Indeed, the cases cited above, relating to the security situation in Northern Ireland, demonstrate that it is possible for a “public emergency” within the meaning of Article 15 to continue for many years. The Court does not consider that derogating measures put in place in the immediate aftermath of the al - Qaeda attacks in the United States of America, and reviewed on an annual basis by Parliament, can be said to be invalid on the ground that they were not “ temporary ”. 179. The applicants ’ argument that the life of the nation was not threatened is principally founded on the dissenting opinion of Lord Hoffman, who interpreted the words as requiring a threat to the organised life of the community which went beyond a threat of serious physical damage and loss of life. It had, in his view, to threaten “ our institutions of government or our existence as a civil community ” (see paragraph 18 above). However, the Court has in previous cases been prepared to take into account a much broader range of factors in determining the nature and degree of the actual or imminent threat to the “nation” and has in the past concluded that emergency situations have existed even though the institutions of the State did not appear to be imperilled to the extent envisaged by Lord Hoffman. 180. As previously stated, the national authorities enjoy a wide margin of appreciation under Article 15 in assessing whether the life of their nation is threatened by a public emergency. While it is striking that the United Kingdom was the only Convention State to have lodged a derogation in response to the danger from al - Qaeda, although other States were also the subject of threats, the Court accepts that it was for each Government, as the guardian of their own people ’ s safety, to make their own assessment on the basis of the facts known to them. Weight must, therefore, attach to the judgment of the United Kingdom ’ s executive and Parliament on this question. In addition, significant weight must be accorded to the views of the national courts, which were better placed to assess the evidence relating to the existence of an emergency. 181. On this first question, the Court accordingly shares the view of the majority of the House of Lords that there was a public emergency threatening the life of the nation. (iii ) Whether the measures were strictly required by the exigencies of the situation 182. Article 15 provides that the State may take measures derogating from its obligations under the Convention only “to the extent strictly required by the exigencies of the situation”. As previously stated, the Court considers that it should in principle follow the judgment of the House of Lords on the question of the proportionality of the applicants ’ detention, unless it can be shown that the national court misinterpreted the Convention or the Court ’ s case-law or reached a conclusion which was manifestly unreasonable. It will consider the Government ’ s challenges to the House of Lords ’ judgment against this background. 183. The Government contended, firstly, that the majority of the House of Lords should have afforded a much wider margin of appreciation to the executive and Parliament to decide whether the applicants ’ detention was necessary. A similar argument was advanced before the House of Lords, where the Attorney - General submitted that the assessment of what was needed to protect the public was a matter of political rather than judicial judgment (see paragraph 19 above). 184. When the Court comes to consider a derogation under Article 15, it allows the national authorities a wide margin of appreciation to decide on the nature and scope of the derogating measures necessary to avert the emergency. Nonetheless, it is ultimately for the Court to rule whether the measures were “strictly required”. In particular, where a derogating measure encroaches upon a fundamental Convention right, such as the right to liberty, the Court must be satisfied that it was a genuine response to the emergency situation, that it was fully justified by the special circumstances of the emergency and that adequate safeguards were provided against abuse (see, for example, Brannigan and McBride, cited above, §§ 48-66; Aksoy, cited above, §§ 71-84; and the principles outlined in paragraph 173 above ). The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level. As the House of Lords held, the question of proportionality is ultimately a judicial decision, particularly in a case such as the present where the applicants were deprived of their fundamental right to liberty over a long period of time. In any event, having regard to the careful way in which the House of Lords approached the issues, it cannot be said that inadequate weight was given to the views of the executive or of Parliament. 185. The Government also submitted that the House of Lords erred in examining the legislation in the abstract rather than considering the applicants ’ concrete cases. However, in the Court ’ s view, the approach under Article 15 is necessarily focused on the general situation pertaining in the country concerned, in the sense that the court – whether national or international – is required to examine the measures that have been adopted in derogation of the Convention rights in question and to weigh them against the nature of the threat to the nation posed by the emergency. Where, as here, the measures are found to be disproportionate to that threat and to be discriminatory in their effect, there is no need to go further and examine their application in the concrete case of each applicant. 186. The Government ’ s third ground of challenge to the House of Lords ’ decision was directed principally at the approach taken towards the comparison between non-national and national suspected terrorists. The Court, however, considers that the House of Lords was correct in holding that the impugned powers were not to be seen as immigration measures, where a distinction between nationals and non-nationals would be legitimate, but instead as concerned with national security. Part 4 of the 2001 Act was designed to avert a real and imminent threat of terrorist attack which, on the evidence, was posed by both nationals and non-nationals. The choice by the Government and Parliament of an immigration measure to address what was essentially a security issue had the result of failing adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists. As the House of Lords found, there was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national who in practice could not leave the country because of fear of torture abroad. 187. Finally, the Government advanced two arguments which the applicants claimed had not been relied on before the national courts. Certainly, there does not appear to be any reference to them in the national courts ’ judgments or in the open material which has been put before the Court. In these circumstances, even assuming that the principle of subsidiarity does not prevent the Court from examining new grounds, it would require persuasive evidence in support of them. 188. The first of the allegedly new arguments was that it was legitimate for the State, in confining the measures to non-nationals, to take into account the sensitivities of the British Muslim population in order to reduce the chances of recruitment among them by extremists. However, the Government have not placed before the Court any evidence to suggest that British Muslims were significantly more likely to react negatively to the detention without charge of national rather than foreign Muslims reasonably suspected of links to al - Qaeda. In this respect the Court notes that the system of control orders, put in place by the Prevention of Terrorism Act 2005, does not discriminate between national and non-national suspects. 189. The second allegedly new ground relied on by the Government was that the State could better respond to the terrorist threat if it were able to detain its most serious source, namely non-nationals. In this connection, again the Court has not been provided with any evidence which could persuade it to overturn the conclusion of the House of Lords that the difference in treatment was unjustified. Indeed, the Court notes that the national courts, including SIAC, which saw both the open and the closed material, were not convinced that the threat from non-nationals was more serious than that from nationals. 190. In conclusion, therefore, the Court, like the House of Lords, and contrary to the Government ’ s contention, finds that the derogating measures were disproportionate in that they discriminated unjustifiably between nationals and non-nationals. It follows that there has been a violation of Article 5 § 1 in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants. III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 14 191. The applicants complained that it was discriminatory, and in breach of Article 14 of the Convention, to detain them when United Kingdom nationals suspected of involvement with al - Qaeda were left at liberty. Article 1 4 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.” 192. In the light of its above reasoning and conclusion in relation to Article 5 § 1 taken alone, the Court does not consider it necessary to examine these complaints separately. IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 193. The applicants contended that the procedure before the domestic courts to challenge their detention did not comply with the requirements of Article 5 § 4, which states: “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 denied that there had been a violation of Article 5 § 4. A. The parties ’ submissions 1. The applicants 194. The applicants advanced two main arguments under Article 5 § 4. Firstly, they emphasised that although it was open to them to argue before SIAC, the Court of Appeal and the House of Lords that their detention under Part 4 of the 2001 Act was unlawful under the Convention, the only remedy which they were able to obtain was a declaration of incompatibility under the 1998 Act. This had no binding effect on the Government and the detention remained lawful until legislative change was effected by Parliament. There was thus no court with power to order their release, in breach of Article 5 § 4. 195. Secondly, the applicants complained about the procedure before SIAC for appeals under section 25 of the 2001 Act (see paragraph 91 above) and in particular the lack of disclosure of material evidence except to special advocates with whom the detained person was not permitted to consult. In their submission, Article 5 § 4 imported the fair - trial guarantees of Article 6 § 1 commensurate with the gravity of the issue at stake. While in certain circumstances it might be permissible for a court to sanction non-disclosure of relevant evidence to an individual on grounds of national security, it could never be permissible for a court assessing the lawfulness of detention to rely on such material where it bore decisively on the case the detained person had to meet and where it had not been disclosed, even in gist or summary form, sufficiently to enable the individual to know the case against him and to respond. In all the applicants ’ appeals, except that of the tenth applicant, SIAC relied on closed material and recognised that the applicants were thereby put at a disadvantage. 2. The Government 196. The Government contended that Article 5 § 4 should be read in the light of the Court ’ s established jurisprudence under Article 13, of which it was the lex specialis as regards detention, that there was no right to challenge binding primary legislation before a national court. This principle, together with the system of declarations of incompatibility under the Human Rights Act 1998, reflected the democratic value of the supremacy of the elected Parliament. 197. On the applicants ’ second point, the Government submitted that there were valid public - interest grounds for withholding the closed material. The right to disclosure of evidence, under Article 6 and also under Article 5 § 4, was not absolute. The Court ’ s case-law from Chahal (cited above) onwards had indicated some support for a special - advocate procedure in particularly sensitive fields. Moreover, in each applicant ’ s case, the open material gave sufficient notice of the allegations against him to enable him to mount an effective defence. 3. The third party, Justice 198. Justice (see paragraph 6 above) informed the Court that at the time SIAC was created by the Special Immigration Appeals Commission Act 1997, the use of closed material and special advocates in the procedure before it was believed to be based on a similar procedure in Canada, applied in cases before the Security Intelligence Review Committee ( SIRC), which considered whether a minister ’ s decision to remove a permanently resident foreign national on national security grounds was well-founded. However, although the SIRC procedure involved in-house counsel with access to the classified material taking part in ex parte and in camera hearings to represent the appellant ’ s interests, it differed substantially from the SIAC model, particularly in that it allowed the special advocate to maintain contact with the appellant and his lawyers throughout the process and even after the special advocate was fully apprised of the secret information against the appellant. 199. In contrast, the SIAC procedures involving closed material and special advocates had attracted considerable criticism, including from the Appellate Committee of the House of Lords, the House of Commons Constitutional Affairs Committee, the Parliamentary Joint Committee on Human Rights, the Canadian Senate Committee on the Anti-Terrorism Act, and the Council of Europe Commissioner for Human Rights. Following the judgment of the House of Lords in December 2004, declaring Part 4 of the 2001 Act incompatible with Articles 5 and 14 of the Convention, the House of Commons Constitutional Affairs Committee commenced an inquiry into the operation of SIAC and its use of special advocates. Among the evidence received by the Committee was a submission from nine of the thirteen serving special advocates. In the submission, the special advocates highlighted the serious difficulties they faced in representing appellants in closed proceedings due to the prohibition on communication concerning the closed material. In particular, the special advocates pointed to the very limited role they were able to play in closed hearings given the absence of effective instructions from those they represented. B. The Court ’ s assessment 1. Admissibility 200. The Court notes that Article 5 § 4 guarantees a right to “everyone who is deprived of his liberty by arrest or detention” to bring proceedings to test the legality of the detention and to obtain release if the detention is found to be unlawful. Since the second and fourth applicants were already at liberty, having elected to travel to Morocco and France respectively, by the time the various proceedings to determine the lawfulness of the detention under the 2001 Act were commenced, it follows that these two applicants ’ complaints under Article 5 § 4 are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 45, Series A no. 182) and must be declared inadmissible. 201. The Court considers that the other applicants ’ complaints under this provision raise complex issues of law and fact, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been raised and it must be declared admissible. 2. The merits ( a ) The principles arising from the case-law 202. Article 5 § 4 provides a lex specialis in relation to the more general requirements of Article 13 (see Chahal, cited above, § 126). It entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. The notion of “lawfulness” under Article 5 § 4 has the same meaning as in § 1, so that the arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 § 1 ( see 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, cited above, § 200; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; and Chahal, cited above, § 130). 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. Although it is not always necessary that an Article 5 § 4 procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question (see, for example, Winterwerp v. the Netherlands, 24 October 1979, § 57, Series A no. 33; Bouamar v. Belgium, 29 February 1988, §§ 57 and 60, Series A no. 129; Włoch v. Poland, no. 27785/95, § 125, ECHR 2000-XI; and Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005 -XII ). 204. Thus, the proceedings must be adversarial and must always ensure “equality of arms” between the parties ( see Reinprecht, cited above, § 31 ). An oral hearing may be necessary, for example in cases of detention on remand ( see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 ‑ II ). Moreover, in remand cases, since the persistence of a reasonable suspicion that the accused person has committed an offence is a condition sine qua non for the lawfulness of the continued detention, the detainee must be given an opportunity effectively to challenge the basis of the allegations against him ( see Becciev v. Moldova, no. 9190/03, §§ 68-72, 4 October 2005). This may require the court to hear witnesses whose testimony appears prima facie to have a material bearing on the continuing lawfulness of the detention ( ibid., §§ 72-76, and Ţurcan v. Moldova, no. 39835/05, §§ 67-70, 23 October 2007 ). It may also require that the detainee or his representative be given access to documents in the case file which form the basis of the prosecution case against him ( see Włoch, cited above, § 127; Nikolova, cited above, § 58; Lamy v. Belgium, 30 March 1989, § 29, Series A no. 151; and Fodale v. Italy, no. 70148/01, ECHR 2006 - VII ). 205. The Court has held nonetheless that, even in proceedings under Article 6 for the determination of guilt on criminal charges, there may be restrictions on the right to a fully adversarial procedure where strictly necessary in the light of a strong countervailing public interest, such as national security, the need to keep secret certain police methods of investigation or the protection of the fundamental rights of another person. There will not be a fair trial, however, unless any difficulties caused to the defendant by a limitation on his rights are sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Doorson v. the Netherlands, 26 March 1996, § 70, Reports 1996 ‑ II; Van Mechelen and Others v. the Netherlands, 23 April 1997, § 58, Reports 1997-III; Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51-53, 16 February 2000; S.N. v. Sweden, no. 34209/96, § 47, ECHR 2002-V; and Botmeh and Alami v. the United Kingdom, no. 15187/03, § 37, 7 June 2007 ). 206. Thus, while the right to a fair criminal trial under Article 6 includes a right to disclosure of all material evidence in the possession of the prosecution, both for and against the accused, the Court has held that it might sometimes be necessary to withhold certain evidence from the defence on public - interest grounds. In Jasper ( cited above, §§ 51-53 ), it found that the limitation on the rights of the defence had been sufficiently counterbalanced where evidence which was relevant to the issues at trial, but on which the prosecution did not intend to rely, was examined ex parte by the trial judge, who decided that it should not be disclosed because the public interest in keeping it secret outweighed the utility to the defence of disclosure. In finding that there had been no violation of Article 6, the Court considered it significant that it was the trial judge, with full knowledge of the issues in the trial, who carried out the balancing exercise and that steps had been taken to ensure that the defence were kept informed and permitted to make submissions and participate in the decision-making process as far as was possible without disclosing the material which the prosecution sought to keep secret ( ibid ., §§ 55-56). In contrast, in Edwards and Lewis v. the United Kingdom ( [GC], nos. 39647/98 and 40461/98, §§ 46-48, ECHR 2004-X ), the Court found that an ex parte procedure before the trial judge was not sufficient to secure a fair trial where the undisclosed material related, or may have related, to an issue of fact which formed part of the prosecution case, which the trial judge, rather than the jury, had to determine and which might have been of decisive importance to the outcome of the applicants ’ trials. 207. In a number of other cases where the competing public interest entailed restrictions on the rights of the defendant in relation to adverse evidence, relied on by the prosecutor, the Court has assessed the extent to which counterbalancing measures can remedy the lack of a full adversarial procedure. For example, in Lucà v. Italy (no. 33354/96, § 40, ECHR 2001 ‑ II ), it held that it would not necessarily be incompatible with Article 6 § 1 for the prosecution to refer at trial to depositions made during the investigative stage, in particular where a witness refused to repeat his deposition in public owing to fears for his safety, if the defendant had been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage. It emphasised, however, that where a conviction was based solely or to a decisive degree on depositions that had been made by a person whom the accused had had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence would be restricted to an extent incompatible with the guarantees provided by Article 6. 208. Similarly, in Doorson ( cited above, §§ 68- 76 ), the Court found that there was no breach of Article 6 where the identity of certain witnesses was concealed from the defendant, on the ground that they feared reprisals. The fact that the defence counsel, in the absence of the defendant, was able to put questions to the anonymous witnesses at the appeal stage and to attempt to cast doubt on their reliability and that the Court of Appeal stated in its judgment that it had treated the evidence of the anonymous witnesses with caution was sufficient to counterbalance the disadvantage caused to the defence. The Court emphasised that a conviction should not be based either solely or to a decisive extent on anonymous statements (see also Van Mechelen and Others, cited above, § 55). In each case, the Court emphasised that its role was to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair ( see Doorson, cited above, § 67). 209. The Court has referred on several occasions to the possibility of using special advocates to counterbalance procedural unfairness caused by lack of full disclosure in national security cases, but it has never been required to decide whether or not such a procedure would be compatible with either Article 5 § 4 or Article 6 of the Convention. 210. In Chahal ( cited above ), the applicant was detained under Article 5 § 1 (f) pending deportation on national security grounds and the Secretary of State opposed his applications for bail and habeas corpus, also for reasons of national security. The Court recognised ( ibid., §§ 130-31) that the use of confidential material might be unavoidable where national security was at stake but held that this did not mean that the executive could be free from effective control by the domestic courts whenever they chose to assert that national security and terrorism were involved. The Court found a violation of Article 5 § 4 in the light of the fact that the High Court, which determined the habeas corpus application, did not have access to the full material on which the Secretary of State had based his decision. Although there was the safeguard of an advisory panel, chaired by a Court of Appeal judge, which had full sight of the national security evidence, the Court held that the panel could not be considered as a “court” within the meaning of Article 5 § 4 because the applicant was not entitled to legal representation before it and was given only an outline of the national security case against him and because the panel had no power of decision and its advice to the Home Secretary was not binding and was not disclosed. The Court made reference ( ibid., §§ 131 and 144) to the submissions of the third parties (Amnesty International, Liberty, the Centre for Advice on Individual Rights in Europe and the Joint Council for the Welfare of Immigrants; and see the submissions of Justice in the present case, paragraph 198 above ) in connection with a procedure applied in national security deportation cases in Canada, whereby the judge held an in camera hearing of all the evidence, at which the proposed deportee was provided with a statement summarising, as far as possible, the case against him and had the right to be represented and to call evidence. The confidentiality of the security material was maintained by requiring such evidence to be examined in the absence of both the deportee and his representative. However, in these circumstances, their place was taken by security-cleared counsel instructed by the court, who cross-examined the witnesses and generally assisted the court to test the strength of the State ’ s case. A summary of the evidence obtained by this procedure, with necessary deletions, was given to the deportee. The Court commented that it: “ ... attaches significance to the fact that, as the interveners pointed out in connection with Article 13, ... in Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice. ” 211. In Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom ( 10 July 1998, § 78, Reports 1998-IV ) and in Al-Nashif v. Bulgaria ( no. 50 963/99, §§ 93-97 and 137, 20 June 2002 ), the Court made reference to its comments in Chahal about the special - advocate procedure but without expressing any opinion as to whether such a procedure would be in conformity with the Convention rights at issue. ( b ) Application to the facts of the present case 212. Before the domestic courts, there were two aspects to the applicants ’ challenge to the lawfulness of their detention. Firstly, they brought proceedings under section 30 of the 2001 Act to contest the validity of the derogation under Article 15 of the Convention and thus the compatibility with the Convention of the entire detention scheme. Secondly, each applicant also brought an appeal under section 25 of the 2001 Act, contending that the detention was unlawful under domestic law because there were no reasonable grounds for a belief that his presence in the United Kingdom was a risk to national security or for a suspicion that he was a terrorist. 213. The Court does not consider it necessary to reach a separate finding under Article 5 § 4 in connection with the applicants ’ complaints that the House of Lords was unable to make a binding order for their release, since it has already found a violation of Article 5 § 1 arising from the provisions of domestic law. 214. The applicants ’ second ground of complaint under Article 5 § 4 concerns the fairness of the procedure before SIAC under section 25 of the 2001 Act to determine whether the Secretary of State was reasonable in believing each applicant ’ s presence in the United Kingdom to be a risk to national security and in suspecting him of being a terrorist. This is a separate and distinct question, which cannot be said to be absorbed in the finding of a violation of Article 5 § 1, and which the Court must therefore examine. 215. The Court reiterates that although the judges sitting as SIAC were able to consider both the “open” and “closed” material, neither the applicants nor their legal advisers could see the closed material. Instead, the closed material was disclosed to one or more special advocates, appointed by the solicitor -general to act on behalf of each applicant. During the closed sessions before SIAC, the special advocate could make submissions on behalf of the applicant, both as regards procedural matters, such as the need for further disclosure, and as to the substance of the case. However, from the point at which the special advocate first had sight of the closed material, he was not permitted to have any further contact with the applicant and his representatives, save with the permission of SIAC. In respect of each appeal against certification, SIAC issued both an open and a closed judgment. 216. The Court takes as its starting point that, as the national courts found and it has accepted, during the period of the applicants ’ detention the activities and aims of the al - Qaeda network had given rise to a “public emergency threatening the life of the nation”. It must therefore be borne in mind that at the relevant time there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack and, although the United Kingdom did not derogate from Article 5 § 4, a strong public interest in obtaining information about al - Qaeda and its associates and in maintaining the secrecy of the sources of such information (see also, in this connection, Fox, Campbell and Hartley, cited above, § 39). 217. Balanced against these important public interests, however, was the applicants ’ right under Article 5 § 4 to procedural fairness. Although the Court has found that, with the exception of the second and fourth applicants, the applicants ’ detention did not fall within any of the categories listed in sub - paragraphs (a) to (f) of Article 5 § 1, it considers that the case-law relating to judicial control over detention on remand is relevant, since in such cases also the reasonableness of the suspicion against the detained person is a sine qua non (see paragraph 204 above). Moreover, in the circumstances of the present case, and in view of the dramatic impact of the lengthy – and what appeared at that time to be indefinite – deprivation of liberty on the applicants ’ fundamental rights, Article 5 § 4 must import substantially the same fair - trial guarantees as Article 6 § 1 in its criminal aspect ( see Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001, and Chahal, cited above, §§ 130-31). 218. Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 § 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him. 219. The Court considers that SIAC, which was a fully independent court (see paragraph 91 above) and which could examine all the relevant evidence, both closed and open, was best placed to ensure that no material was unnecessarily withheld from the detainee. In this connection, the special advocate could provide an important, additional safeguard through questioning the State ’ s witnesses on the need for secrecy and through making submissions to the judge regarding the case for additional disclosure. On the material before it, the Court has no basis to find that excessive and unjustified secrecy was employed in respect of any of the applicants ’ appeals or that there were not compelling reasons for the lack of disclosure in each case. 220. The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case-by-case basis, the Court observes generally that, where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, it could not be said that the applicant was denied an opportunity effectively to challenge the reasonableness of the Secretary of State ’ s belief and suspicions about him. In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it should have been possible for the applicant to provide his representatives and the special advocate with information with which to refute them, if such information existed, without his having to know the detail or sources of the evidence which formed the basis of the allegations. An example would be the allegation made against several of the applicants that they had attended a terrorist training camp at a stated location between stated dates; given the precise nature of the allegation, it would have been possible for the applicant to provide the special advocate with exonerating evidence, for example of an alibi or of an alternative explanation for his presence there, sufficient to permit the advocate effectively to challenge the allegation. Where, however, the open material consisted purely of general assertions and SIAC ’ s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 § 4 would not be satisfied. 221. The Court must, therefore, assess the certification proceedings in respect of each of the detained applicants in the light of these criteria. 222. It notes that the open material against the sixth, seventh, eighth, ninth and eleventh applicants included detailed allegations about, for example, the purchase of specific telecommunications equipment, possession of specific documents linked to named terrorist suspects and meetings with named terrorist suspects with specific dates and places. It considers that these allegations were sufficiently detailed to permit the applicants effectively to challenge them. It does not, therefore, find a violation of Article 5 § 4 in respect of the sixth, seventh, eighth, ninth and eleventh applicants. 223. The principal allegations against the first and tenth applicants were that they had been involved in fund-raising for terrorist groups linked to al ‑ Qaeda. In the first applicant ’ s case there was open evidence of large sums of money moving through his bank account and in respect of the tenth applicant there was open evidence that he had been involved in raising money through fraud. However, in each case the evidence which allegedly provided the link between the money raised and terrorism was not disclosed to either applicant. In these circumstances, the Court does not consider that these applicants were in a position effectively to challenge the allegations against them. There has therefore been a violation of Article 5 § 4 in respect of the first and tenth applicants. 224. The open allegations in respect of the third and fifth applicants were of a general nature, principally that they were members of named extremist Islamist groups linked to al - Qaeda. SIAC observed in its judgments dismissing each of these applicants ’ appeals that the open evidence was insubstantial and that the evidence on which it relied against them was largely to be found in the closed material. Again, the Court does not consider that these applicants were in a position effectively to challenge the allegations against them. There has therefore been a violation of Article 5 § 4 in respect of the third and fifth applicants. V. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 13 225. The applicants argued in the alternative that the matters complained of in relation to Article 5 § 4 also gave rise to a violation of Article 13. In the light of its findings above, the Court does not consider it necessary to examine these complaints separately. VI. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 226. Finally, the applicants complained that, despite having been unlawfully detained in breach of Article 5 §§ 1 and 4, they had no enforceable right to compensation, in breach of 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.” 227. The Government reasoned that there had been no breach of Article 5 in this case, so Article 5 § 5 did not apply. In the event that the Court did find a violation of Article 5, Article 5 § 5 required “an enforceable right to compensation”, but not that compensation be awarded in every case. Since the Secretary of State was found by the national courts reasonably to suspect that the applicants were “international terrorists”, as a matter of principle they were not entitled to compensation from the national courts. A. Admissibility 228. The Court notes that it has found a violation of Article 5 § 1 in respect of all the applicants except the second and fourth applicants, and that it has found a violation of Article 5 § 4 in respect of the first, third, fifth and tenth applicants. It follows that the second and fourth applicants ’ complaints under Article 5 § 5 are inadmissible, but that the other applicants ’ complaints are admissible. B. The merits 229. The Court notes that the above violations could not give rise to an enforceable claim for compensation by the applicants before the national courts. It follows that there has been a violation of Article 5 § 5 in respect of all the applicants, save the second and fourth applicants (see Brogan and Others v. the United Kingdom, 29 November 1988, § 67, Series A no. 145 ‑ B, and Fox, Campbell and Hartley, cited above, § 46). VII. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 230. The applicants argued in the alternative that the procedure before SIAC was not compatible with Article 6 §§ 1 and 2 of the Convention, which provide: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 231. The applicants contended that Article 6 was the lex specialis of the fair - trial guarantee. The regime under consideration represented the most serious form of executive measure against terrorist suspects adopted within the member States of the Council of Europe in the post-2001 period. It was adopted to enable the United Kingdom to take proceedings against individuals on the basis of reasonable suspicion alone, deriving from evidence which could not be deployed in the ordinary courts. That alone warranted an analysis under Article 6. The proceedings were for the determination of a criminal charge, within the autonomous meaning adopted under Article 6 § 1, and also for the determination of civil rights and obligations. The use of closed material gave rise to a breach of Article 6. 232. In the Government ’ s submission, Article 5 § 4 was the lex specialis concerning detention and the issues should be considered under that provision. In any event, Article 6 did not apply, because SIAC ’ s decision on the question whether there should be detention related to “special measures of immigration control” and thus determined neither a criminal charge nor any civil right or obligation. Even if Article 6 § 1 did apply, there was no violation, for the reasons set out above in respect of Article 5 § 4. 233. Without coming to any conclusion as to whether the proceedings before SIAC fell within the scope of Article 6, the Court declares these complaints admissible. It observes, however, that it has examined the issues relating to the use of special advocates, closed hearings and lack of full disclosure in the proceedings before SIAC above, in connection with the applicants ’ complaints under Article 5 § 4. In the light of this full examination, it does not consider it necessary to examine the complaints under Article 6 § 1. VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 234. The applicants sought compensation for the pecuniary and non-pecuniary damage sustained as a result of the violations, together with costs and expenses, under Article 41 of the Convention, which provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” The Government contended that an award of just satisfaction would be neither necessary nor appropriate in the present case. A. Damage 1. The applicants ’ claims 235. The applicants submitted that monetary just satisfaction was necessary and appropriate. When assessing quantum, guidance could be obtained from domestic court awards in respect of unlawful detention and also from awards made by the Court in past cases ( they referred, inter alia, to Perks and Others v. the United Kingdom, nos. 25277/94, 25279/94, 25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and 28456/95, 12 October 1999, where 5,500 pounds sterling (GBP) was awarded in respect of six days ’ unlawful imprisonment, and Tsirlis and Kouloumpas v. Greece, 29 May 199 7, Reports 1997-III, where the applicants were awarded the equivalent of GBP 17,890 and GBP 16,330 respectively in relation to periods of thirteen and twelve months ’ imprisonment for refusing to perform military service). 236. The first applicant claimed compensation for his loss of liberty between 19 December 2001 and 11 March 2005, a period of three years and eighty-three days, and the consequent mental suffering, including mental illness. He submitted that the award should in addition take account of the suffering experienced by his wife and family as a result of the separation and the negative publicity. He proposed an award of GBP 234,000 to cover non-pecuniary damage. In addition, he claimed approximately GBP 7,500 in pecuniary damage to cover the costs of his family ’ s visits to him in detention and other expenses. 237. The third applicant claimed compensation for his loss of liberty between 19 December 2001 and 11 March 2005 and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 230,000 for non-pecuniary damage, together with pecuniary damage of GBP 200 travel costs, incurred by his wife, and a sum to cover his lost opportunity to establish himself in business in the United Kingdom. 238. The fifth applicant claimed compensation for his detention between 19 December 2001 and 22 April 2004, his subsequent house arrest until 11 March 2005 and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 240,000 for non-pecuniary damage, together with pecuniary damage of GBP 5,500, including travel and child-minding costs incurred by his wife and money sent by her to the applicant in prison. 239. The sixth applicant claimed compensation for his detention between 19 December 2001 and 11 March 2005 and the consequent mental suffering, together with the distress caused to his wife and children. He proposed a figure of GBP 217,000 for non-pecuniary damage, together with pecuniary damage of GBP 51,410, including his loss of earnings as a self-employed courier and travel costs incurred by his wife. 240. The seventh applicant claimed compensation for his detention between 9 February 2002 and 11 March 2005 and the consequent mental suffering, including mental illness. He proposed a figure of GBP 197,000 for non-pecuniary damage. He did not make any claim in respect of pecuniary damage. 241. The eighth applicant claimed compensation for his loss of liberty between 23 October 200 2 and 11 March 2005 and the consequent mental suffering, together with the distress caused to his wife and children. He proposed a figure of GBP 170 ,000 for non-pecuniary damage, together with pecuniary damage of GBP 4,570, including money sent to him in prison by his wife and her costs of moving house to avoid unwanted media attention. 242. The ninth applicant claimed compensation for his loss of liberty between 22 April 2002 and 11 March 2005, and the consequent mental suffering, including mental illness, together with the distress caused to his wife and children. He proposed a figure of GBP 215,000 for non-pecuniary damage, together with pecuniary damage of GBP 7,725, including money he had to borrow to assist his wife with household expenses, money sent to him in prison by his wife and her travel expenses to visit him. He also asked for a sum to cover his lost opportunity to establish himself in business in the United Kingdom. 243. The tenth applicant claimed compensation for his loss of liberty between 14 January 2003 and 11 March 2005 and the consequent mental suffering, including mental illness. He proposed a figure of GBP 144,000 for non-pecuniary damage, together with pecuniary damage of GBP 2,751, including the loss of a weekly payment of GBP 37 he was receiving from the National Asylum Support Service prior to his detention and the cost of telephone calls to his legal representatives. 244. The eleventh applicant claimed compensation for his loss of liberty between 2 October 2003 and 11 March 2005 and the consequent mental suffering. He proposed a figure of GBP 95,000 for non-pecuniary damage but did not claim any pecuniary damage. 2. The Government ’ s submissions 245. The Government, relying on the Court ’ s judgment in McCann and Others v. the United Kingdom ( 27 September 1995, § 219, Series A no. 324 ), contended that, as a matter of principle, the applicants were not entitled to receive any form of financial compensation because they were properly suspected, on objective and reasonable grounds, of involvement in terrorism and had failed to displace that suspicion. 246. The Government pointed out that Part 4 of the 2001 Act was passed and the derogation made in good faith, in an attempt to deal with what was perceived to be an extremely serious situation amounting to a public emergency threatening the life of the nation. The core problem with the detention scheme under the 2001 Act, as identified by SIAC and the House of Lords, was that it did not apply to United Kingdom as well as foreign nationals. Following the House of Lords ’ judgment, urgent consideration was given to the question what should be done with the applicants in the light of the public emergency and it was decided that a system of control orders should be put in place. Against this background, it could not be suggested that the Government had acted cynically or in flagrant disregard of the individuals ’ rights. 247. In addition, the Government submitted that no just satisfaction should be awarded in respect of any procedural violation found by the Court (for example, under Article 5 §§ 4 or 5), since it was not possible to speculate what would have happened had the breach not occurred ( see Kingsley v. the United Kingdom [GC], no. 35605/97, ECHR 2002-IV, and Hood v. the United Kingdom [GC], no. 27267/95, ECHR 1999-I ). 248. In the event that the Court did decide to make a monetary award, it should examine carefully in respect of each head of claim whether there was sufficient supporting evidence, whether the claim was sufficiently closely connected to the violation and whether the claim was reasonable as to quantum. 3. The Court ’ s assessment 249. The Court reiterates, firstly, that it has not found a violation of Article 3 in the present case. It follows that it cannot make any award in respect of mental suffering, including mental illness, allegedly arising from the conditions of detention or the open-ended nature of the detention scheme in Part 4 of the 2001 Act. 250. It has, however, found violations of Article 5 §§ 1 and 5 in respect of the first, third, fifth, sixth, seventh, eighth, ninth, tenth and eleventh applicants and a violation of Article 5 § 4 in respect of the first, third, fifth and tenth applicants. In accordance with Article 41, it could, therefore, award these applicants monetary compensation, if it considered such an award to be “necessary”. The Court has a wide discretion to determine when an award of damages should be made, and frequently holds that the finding of a violation is sufficient satisfaction without any further monetary award (see, among many examples, Nikolova v. Bulgaria [GC], no. 31195/96, § 76, ECHR 1999 ‑ II ). In exercising its discretion the Court will have regard to all the circumstances of the case, including the nature of the violations found, as well as any special circumstances pertaining to the context of the case. 251. The Court reiterates that in the McCann and Others judgment ( cited above, § 219 ), it declined to make any award in respect of pecuniary or non-pecuniary damage arising from the violation of Article 2 of the Convention, having regard to the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar. It considers that the present case is distinguishable, since it has not been established that any of the applicants has engaged, or attempted to engage, in any act of terrorist violence. 252. The decision whether to award monetary compensation in this case and, if so, the amount of any such award, must take into account a number of factors. The applicants were detained for long periods, in breach of Article 5 § 1, and the Court has, in the past, awarded large sums in just satisfaction in respect of unlawful detention (see, for example, Assanidze v. Georgia [GC], no. 71503/01, ECHR 2004-II, or the cases cited by the applicants in paragraph 235 above). The present case is, however, very different. In the aftermath of the al - Qaeda attacks on the United States of America of 11 September 2001, in a situation which the domestic courts and this Court have accepted was a public emergency threatening the life of the nation, the Government were under an obligation to protect the population of the United Kingdom from terrorist violence. The detention scheme in Part 4 of the 2001 Act was devised in good faith, as an attempt to reconcile the need to prevent the commission of acts of terrorism with the obligation under Article 3 of the Convention not to remove or deport any person to a country where he could face a real risk of ill-treatment (see paragraph 166 above). Although the Court, like the House of Lords, has found that the derogating measures were disproportionate, the core part of that finding was that the legislation was discriminatory in targeting non-nationals only. Moreover, following the House of Lords ’ judgment, the detention scheme under the 2001 Act was replaced by a system of control orders under the Prevention of Terrorism Act 2005. All the applicants in respect of whom the Court has found a violation of Article 5 § 1 became, immediately upon release in March 2005, the subject of control orders. It cannot therefore be assumed that, even if the violations in the present case had not occurred, the applicants would not have been subjected to some restriction on their liberty. 253. Against this background, the Court finds that the circumstances justify the making of an award substantially lower than that which it has had occasion to make in other cases of unlawful detention. It awards 3, 9 00 euros (EUR) to the first, third and sixth applicants; EUR 3,400 to the fifth and ninth applicants; EUR 3,800 to the seventh applicant; EUR 2,800 to the eighth applicant; EUR 2,500 to the tenth applicant; and EUR 1,700 to the eleventh applicant, together with any tax that may be chargeable. B. Costs and expenses 254. The applicants made no claim for costs in respect of the domestic proceedings, since these had been recovered as a result of the order made by the House of Lords. Their total claim for the costs of the proceedings before the Court totalled GBP 144,752.64, inclusive of value - added tax (VAT). This included 599 hours worked by solicitors at GBP 70 per hour plus VAT, 34 2.5 hours worked by counsel at GBP 150 per hour plus VAT and 85 hours worked by senior counsel at GBP 200 per hour plus VAT in preparing the application, observations and just satisfaction claim before the Chamber and Grand Chamber, together with disbursements such as experts ’ reports and the costs of the hearing before the Grand Chamber. They submitted that it had been necessary to instruct a number of different counsel, with different areas of specialism, given the range of issues to be addressed and the evidence involved, concerning events which took place over a ten-year period. 255. The Government submitted that the claim was excessive. In particular, the number of hours spent by solicitors and counsel in preparing the case could not be justified, especially since each of the applicants had been represented throughout the domestic proceedings during which detailed instructions must have been taken and consideration given to virtually all the issues arising in the application to the Court. The hourly rates charged by counsel were, in addition, excessive. 256. The Court reiterates that an applicant is entitled to be reimbursed those costs actually and necessarily incurred to prevent or redress a breach of the Convention, to the extent that such costs are reasonable as to quantum ( see Kingsley, cited above, § 49). While it accepts that the number of applicants must, inevitably, have necessitated additional work on the part of their representatives, it notes that most of the individualised material filed with the Court dealt with the applicants ’ complaints under Article 3 of the Convention and their claims for just satisfaction arising out of those complaints, which the Court has rejected. In addition, it accepts the Government ’ s argument that a number of the issues, particularly those relating to the derogation under Article 15 of the Convention, had already been aired before the national courts, which should have reduced the time needed for the preparation of this part of the case. Against this background, it considers that the applicants should be awarded a total of EUR 60 ,000 in respect of costs and expenses, together with any tax that may be chargeable to the applicants. C. Default interest 257. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found in particular that the choice by the Government and Parliament of an immigration measure to address what had essentially been a security issue (a genuine and imminent threat of a terrorist attack following 11 September 2001) had resulted in a failure adequately to address the problem, while imposing a disproportionate and discriminatory burden of indefinite detention on one group of suspected terrorists. The threat came from both British nationals and foreign nationals and there was no significant difference in the potential adverse impact of detention without charge on a national or on a non-national. The Court thus found that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention because the derogating measures had been disproportionate in that they had discriminated unjustifiably between nationals and non-nationals. conclusion reached by the Constitutional Court. In both case, the Court therefore found that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention. |
866 | In the context of criminal justice | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The aims and nature of a caution 20. At the relevant time the purpose of a formal caution was set out in Police Force Order no. 9/96 issued by the Royal Ulster Constabulary, namely: “(a) to deal quickly and simply with less serious offenders; (b) to divert offenders in the public interest from appearance in the criminal courts; and (c) to reduce the likelihood of re-offending.” 21. The Order further noted: “... a formal caution is not a form of sentence ... (a) A formal caution is nonetheless a serious matter. It is recorded by police; it may be relevant in relation to future decisions as to prosecution, and it may be cited in any subsequent criminal prosecutions. Properly used, caution is an effective form of disposal. ...” B. Retention of conviction and caution data in police records 1. The statutory background 22. Article 29(4) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (as subsequently amended) provides that: “... the Secretary of State may by regulations make provision for recording in police records convictions for such offences as are specified in the regulations.” 23. The regulations made by the Secretary of State under this provision are the Northern Ireland Criminal Records (Recordable Offences) Regulations 1989. These regulations identify the relevant convictions as being those for offences punishable by imprisonment, as well as a number of additional specified offences. The regulations do not make any reference to cautions. 24. According to the Government, the recording of cautions in Northern Ireland takes place under the police’s common law powers to retain and use information for police purposes. That power is subject to the provisions of the Data Protection Act 1998 (see generally paragraphs 65-71 below). 2. Policy and practice (a) The policy and practice of the Police Service in Northern Ireland 25. According to the Government, the policy and practice of the Police Service in Northern Ireland (“PSNI”) at the time of the issue of the applicant’s caution in 2000 was to delete cautions from the individual’s criminal record after five years. 26. However, following publication of the Bichard Report in 2006 (see paragraphs 31-32 below), the PSNI changed its practice so as to retain information on adult cautions for the rest of a person’s life. (b) Relevant policy documents (i) The ACPO Codes of Practice of 1995, 1999 and 2002 27. The chief constable of PSNI is a member of the Association of Chief Police Officers of England and Wales and Northern Ireland (“ACPO”). 28. Pursuant to the ACPO Code of Practice 1995 (“the 1995 ACPO Code”), in cases of conviction for an offence that carried the possibility of imprisonment, a record of the conviction had to be retained for a period of twenty years. Exceptions to this included cases where the conviction was for an offence against a child or young person, where the record was to be retained until the offender was 70 years old, subject to a minimum 20-year retention period; and cases involving rape, where the record was to be retained for the life of the offender. 29. Records of cautions (assuming there were no other convictions or further cautions) were to be retained for a five-year period. 30. The 1995 ACPO Code was updated in 1999 and subsequently replaced by another code of practice in 2002. Neither instrument substantially altered the provisions regarding retention of data relating to cautions. (ii) The Bichard Inquiry Report 2004 31. Following the murders of two young girls in August 2002 by a caretaker employed at a local school, a review of the United Kingdom’s police forces was announced by the Home Secretary. An inquiry was set up, to be conducted by Sir Michael Bichard. 32. The Bichard Inquiry Report (“the Bichard report”) was published in June 2004. It reviewed current practice as regards retention of data on convictions and cautions and concluded (at paragraph 4.41) that “there were a number of problems with the review, retention or deletion of records.” The report recommended that: “A Code of Practice should be produced covering record creation, review, retention, deletion and information sharing. This should be made under the Police Reform Act 2002 and needs to be clear, concise and practical. It should supersede existing guidance.” (iii) Code of Practice on the Management of Police Information 2005 33. In July 2005 the Secretary of State adopted a Code of Practice on the Management of Police Information (“the 2005 Code of Practice”). The Code applies directly to police forces in England and Wales and is available for adoption by other police forces. The Government did not clarify whether the Code has been adopted by the PSNI. 34. Paragraph 1.1.1 of the Code explains that police forces have a duty to obtain and use a wide variety of information, including personal information. The Code clarifies that responsibility for the management and use of information lies with the chief officer of the police force. It recognises the existing legislative framework for the management of information relating to data protection and human rights set out in the Data Protection Act (see paragraph 65-71 below). 35. The Code sets out a number of key principles including, inter alia, the duty to obtain and manage information; the importance of recording information considered necessary for a police purpose; and the need to review information and consider whether its retention remains justified, in accordance with any guidance issued. (iv) Guidance on the Management of Police Information 2006 and 2010 36. In 2006 ACPO published Guidance on the Management of Police Information. This Guidance was applied by the PSNI. A second edition was published in 2010 (“the MOPI Guidance”), and is also applied by the PSNI. 37. Chapter 7 of the MOPI Guidance deals with review, retention and disposal of police information not contained on the Police National Computer (“PNC”). The PNC is the system for recording conviction data in England and Wales; the Causeway system is used in Northern Ireland. The MOPI Guidance notes at the outset that: “7.2.1 ... Public authorities, including police forces, must act in a way that complies with the European Convention on Human Rights (ECHR) and the Human Rights Act 1998. In relation to record retention this requires a proportionate approach to the personal information held about individuals. The decision to retain personal records should be proportionate to the person’s risk of offending, and the risk of harm they pose to others and the community. A higher proportionality test should be met in order to retain records about relatively minor offending.” 38. The MOPI Guidance also refers to the need to comply with the principles of the Data Protection Act (see paragraph 65-71 below). 39. The MOPI Guidance sets out the framework for decision-making in respect of retention of police information. It provides that records should be kept for a minimum period of six years, beyond which time there is a requirement to review whether retention of the information remains necessary for a policing purpose. Relevant questions are whether there is evidence of a capacity to inflict serious harm, whether there are concerns relating to children or vulnerable adults, whether the behaviour involved a breach of trust, whether there is evidence of links or associations which might increase the risk of harm, whether there are concerns as to substance misuse and whether there are concerns that an individual’s mental state might increase the risk. In any review, the MOPI Guidance notes that there is a presumption in favour of retention of police information provided that it is not excessive, is necessary for a policing purpose, is adequate for that purpose and is up to date. 40. The MOPI Guidance also contains a review schedule based on the seriousness of offences. Under the review schedule, information is divided into four categories. Group 1 is called “Certain Public Protection Matters”, which includes information relating to individuals who have been convicted, acquitted, charged, arrested, questioned or implicated in relation to murder or a serious offence as specified in the Criminal Justice Act 2003 (or historical offences that would be charged as such if committed today). Such information should only be disposed of if it is found to be entirely inaccurate or no longer necessary for policing purposes. The MOPI Guidance continues: “Forces must retain all information relating to certain public protection matters until such time as a subject is deemed to have reached 100 years of age (this should be calculated using the subject’s date of birth). There is still a requirement, however, to review this information regularly to ensure that it is adequate and up to date. This must be done every ten years ... Due to the seriousness of this group, no distinction is made between the type or classification of information that can be retained for 100 years; information retained under this grouping can include intelligence of any grading. There may be extreme cases where the retention of records relating to certain public protection matters would be disproportionately injurious to the individual they are recorded against. For example, an individual arrested on suspicion of murder for a death that is subsequently found to have been the result of natural causes, or an entirely malicious accusation that has been proven as such, would both generate records that can only be adequate and up to date if they reflect what actually happened. Particular care must be exercised in disclosing any such records to avoid unnecessary damage to the person who is the subject of the record.” 41. The other categories are “Other Sexual, Violent or Serious Offences (Group 2), in respect of which information should be retained for as long as the offender or suspected offender continues to be assessed as posing a risk of harm; “All Other Offences” (Group 3), in respect of which police forces may choose to use a system of time-based, automatic disposal if it is considered that the risk of disposal is outweighed by the administrative burden of reviewing the information or the cost of retaining it; and “Miscellaneous” (Group 4), which covers a variety of other cases and entails different guidance on retention in each one. (v) Retention Guidelines for Nominal Records on the Police National Computer 2006 42. The ACPO Retention Guidelines for Nominal Records on the Police National Computer 2006 (“the ACPO Guidelines”) came into effect on 31 March 2006. The ACPO Guidelines form part of the guidance issued under the MOPI Code and are applied by PSNI. 43. The ACPO Guidelines explain that: “1.3 The Retention Guidelines are based on a format of restricting access to PNC data, rather than the deletion of that data. The restriction of access is achieved by setting strict time periods after which the relevant event histories will ‘step down’ and only be open to inspection by the police. Following the ‘step down’ other users of PNC will be unaware of the existence of such records, save for those occasions where the individual is the subject of an Enhanced Check under the Criminal Records Bureau vetting process ... ” 44. They continue: “2.8 ...the Nominal records will now contain ‘Event Histories’ to reflect the fact that the subject may have been Convicted (including cautions, reprimands and warnings), dealt with by the issue of a Penalty Notice for Disorder, Acquitted, or dealt with as a ‘CJ Arrestee’ [a person who has been arrested for a recordable offence under the Criminal Justice Act 2003 but in respect of whom no further action was taken].” 45. The general principle set out in paragraph 3.1 of the ACPO Guidelines is that when a nominal record is created or updated on the PNC by virtue of an individual being convicted, receiving a Penalty Notice for Disorder, being acquitted or being a CJ Arrestee, the record will contain the relevant personal data together with details of the offence which resulted in the creation of the record. The record will be retained on PNC until that person is deemed to have attained 100 years of age. 46. Paragraph 4.32 of the ACPO Guidelines clarifies that chief officers are the “data controllers” (within the meaning of the Data Protection Act 1998 – see paragraphs 65-71 below) of all PNC records, including DNA and fingerprints associated with the entry, created by their forces and that they have the discretion in exceptional circumstances to authorise the deletion of any such data. Appendix 2 of the ACPO Guidelines outlines the procedure to be followed in deciding whether a particular case will be regarded as “exceptional” and states: “Exceptional cases by definition will be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond reasonable doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance.” C. Disclosure of a caution 1. The legal framework (a) Prior to 1 April 2008 47. According to the Government, from the date on which the caution was administered to the applicant until 1 April 2008, requests for disclosure of criminal record data in Northern Ireland were made on a consensual basis. Disclosure took place in accordance with well-established common law powers of the police for police purposes only. (b) After 1 April 2008 48. Part V of the Police Act 1997 (“the 1997 Act”) now sets out the legislative framework for the disclosure of criminal record information in Northern Ireland. The relevant provisions entered into force in Northern Ireland on 1 April 2008. 49. Section 113A deals with criminal record certificates (“CRCs”). Section 113A(3) defines a CRC as follows: “A criminal record certificate is a certificate which – (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records, or (b) states that there is no such matter.” ...” 50. Section 113A(6) defines “central records” as such records of convictions and cautions held for the use of police forces generally as may be prescribed. In Northern Ireland, the relevant records are prescribed in the Police Act 1997 (Criminal Record) (Disclosure) Regulations (Northern Ireland) 2008 as information in any form relating to: convictions held in the criminal history database of the Causeway System; and convictions and cautions on a names index held by the National Police Improvement Authority for the use of police forces generally. The term “relevant matter” is defined in section 113A(6) of the 1997 Act as including “spent” convictions and cautions (see paragraphs 61-64 below). Pursuant to section 65(9) of the Crime and Disorder Act 1998, the reference to a “caution” in section 113A is to be construed as including warnings and reprimands. 51. The Secretary of State must issue a CRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question. Section 113A(6) defines “exempted question” as follows: in respect of a conviction, a question which the Secretary of State has by order excluded from the provisions on “spent” convictions under the 1974 Act or the 1978 Order; and in respect of a caution, a question which the Secretary of State has by order excluded from the provisions on “spent” cautions under the 1974 Act; as noted above there is no corresponding provision in Northern Ireland. In respect of Northern Ireland, the Secretary of State subsequently made an order excluding the provisions on “spent” convictions in relation to questions directed, inter alia, at assessing the suitability of persons to work with children and vulnerable adults. 52. Section 113B deals with enhanced criminal record certificates (“ECRCs”). As with a CRC, the Secretary of State must issue an ECRC to any individual who makes an application in the prescribed manner and form and pays the prescribed fee. The application must be countersigned by a registered person and accompanied by a statement by the registered person that the certificate is required for the purposes of an exempted question asked for a “prescribed purpose”. 53. The “prescribed purposes” are defined in the Police Act 1997 (Criminal Records) (Disclosure) Regulations (Northern Ireland) 2008 as amended and include the purposes of considering the applicant’s suitability to engage in any activity which is regulated activity relating to children or vulnerable adults, as defined in legislation. 54. Section 113B(3) provides: “An enhanced criminal record certificate is a certificate which– (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter or information.” 55. Section 113B(4) provides that before issuing an ECRC the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose” and ought to be included in the certificate. 56. Pursuant to section 113B(5), the Secretary of State must also request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion, might be relevant for the “prescribed purpose”, ought not to be included in the certificate in the interests of the prevention or detection of crime but can, without harming those interests, be disclosed to the registered person. 57. The Secretary of State must send to the registered person who countersigned the application a copy of the enhanced criminal record certificate, and any information provided in accordance with subsection (5). 2. Policy and practice 58. The MOPI Guidance explains the circumstances in which police information will be disclosed: “6.3.1. ... The Police Act 1997 creates a statutory scheme for the disclosure of criminal records and police information on potential employees to prospective employers. The CRB is responsible for the scheme and for ensuring that employers have sufficient information to make a judgment on the suitability of a potential employee to work with children or vulnerable adults.” 59. The Guidance further refers to the possibility of sharing information under common law powers. In such cases, a policing purpose must be established and the decision to disclose data must strike a balance between the risk posed and the need for confidentiality of data under the Human Rights Act and the Data Protection Act. 60. As noted above, the ACPO Guidelines work on the basis of restricting access to police information rather than deleting data. Recordable offences are split into categories “A”, “B” and “C” depending on the seriousness of the offence, with category A being the most serious offences. These categories mirror Groups 1, 2 and 3 set out in the MOPI Guidance. The Guidelines set strict time periods after which relevant data will “step down” and only be open to inspection by the police. The aim is to ensure that following step down, other users of the PNC will be unaware of the existence of the relevant records, save in cases of requests for criminal record checks. For example, the ACPO Guidelines state, at paragraph 4.19, that: “4.19 In the case of an adult who is dealt with by way of a caution in respect of an offence listed in category ‘A’, the conviction history will ‘step down’ after a clear period of 10 years, and thereafter only be open to inspection by the police.” D. Rehabilitation of offenders 61. Pursuant to legislation, those convicted of certain offences may become “rehabilitated” after a certain period of time has elapsed. The relevant legislation in England and Wales is the Rehabilitation of Offenders Act 1974 (“the 1974 Act”). The legislation which applies in Northern Ireland is the Rehabilitation of Offenders (Northern Ireland) Order 1978 (“the 1978 Order”). 62. Pursuant to the 1978 Order, any person who has been convicted of an offence capable of rehabilitation and has not committed any other offence during the rehabilitation period is to be treated as rehabilitated at the end of the rehabilitation period. 63. The effect of rehabilitation is that the person is treated for all purposes in law as a person who has not committed, or been charged with, prosecuted for or convicted of the offence in question, i.e. the conviction is considered “spent”. If asked about previous convictions, a person is to treat the question as not relating to spent convictions and may frame his answer accordingly; he is not to be liable or prejudiced for his failure to acknowledge or disclose a spent conviction. Spent convictions are not a proper ground for dismissing or excluding a person from employment. However, the Secretary of State is empowered to provide for exclusions, modifications or exemptions from the provisions on the effect of rehabilitation. 64. The 1978 Order makes no reference to cautions. However, the 1974 Act (which does not apply in Northern Ireland) contains a Schedule introduced in 2008 which provides protection for spent cautions. According to Schedule 2, a caution is to be considered a spent caution at the time that it is given. The effects of rehabilitation in respect of a caution are the same as those described above which apply to a conviction. As with convictions, the Secretary of State may, by order, provide for exclusions or exemptions. E. The Data Protection Act 1998 65. The Data Protection Act (“the DPA 1998”) was adopted on 16 July 1998. The main provisions of the Act entered into force on 1 March 2000. 66. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. 67. Pursuant to section 1 of the DPA 1998, “personal data” includes data which relate to a living individual who can be identified from those data. Section 2 of the Act defines “sensitive personal data” as personal data consisting, inter alia, of information as to the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings. 68. Under the first principle personal data shall be processed fairly and lawfully and, in particular shall not be processed unless (a) at least one of the conditions in Schedule 2 is met; and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, including that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (paragraphs 5(a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing is necessary for the purposes of performing an obligation imposed by law on the data controller in connection with employment (paragraph 1), the processing is necessary for the purpose of, or in connection with, any legal proceedings or is otherwise necessary for the purposes of establishing, exercising or defending legal rights (paragraph 6), or is necessary for the administration of justice or for the exercise of any functions conferred on any person by or under an enactment (paragraph 7). Section 29 provides a qualified exemption from the first data protection principle in the case of personal data processed, inter alia, for the prevention or detection of crime. 69. The third principle provides that personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. 70. The fifth principle stipulates that personal data processed for any purpose shall not be kept for longer than is necessary for that purpose. 71. The Information Commissioner created pursuant to the Act has an independent duty to promote the following of good practice by data controllers and has power under section 40 of the Act to make orders (“enforcement notices”) in this respect. Section 47 of the Act makes it a criminal offence not to comply with an enforcement notice. Section 48 of the Act gives data controllers the right to appeal against an enforcement notice to the First Tier Tribunal, if an enforcement notice raises a point of law. Section 13 sets out a right to claim damages in the domestic courts in respect of contraventions of the Act. F. The Human Rights Act 1998 72. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” 73. Section 4 of the Act provides: “(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. ...” 74. 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.” 75. 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. 76. 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. G. Judicial consideration 1. R (X) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068 77. In R (X), the Court of Appeal considered the compatibility with Article 8 of the Convention of the disclosure of additional information under the predecessor of section 113B(4) of the 1997 Act in the context of an enhanced criminal records check. The appellant had applied for a job as a social worker and had no previous convictions. He had been charged with indecent exposure, but the proceedings were discontinued when the alleged victim failed to identify him. The social work agency which was dealing with his job application applied for an ECRC. The chief constable, as he was required to do, issued an ECRC. It contained details of the allegations of indecent exposure under the heading “other relevant information”. 78. Lord Woolf CJ noted at the outset that while it was accepted by both parties that the information included in the ECRC might offend against Article 8 § 1, it was not suggested that the legislation itself contravened that Article. He explained: “20. ... No doubt this is because disclosure of the information contained in the certificate would be ‘in accordance with the law’ and ‘necessary in a democratic society’, in the interests of public safety and for the prevention of crime and for the protection of the rights and freedoms of others. This country must, through its legislature, be entitled to enable information to be available to prospective employers, where the nature of the employment means that particular care should be taken to ensure that those who are working with the appropriate categories of persons can be relied on to do so, without those in their care coming to harm if they are under the age of 18 or vulnerable adults.” 79. On the question of the balance between competing interests, Lord Woolf CJ indicated (at paragraph 36) that: “Having regard to the language of section 115 [the predecessor of section 113B], the Chief Constable was under a duty to disclose if the information might be relevant, unless there was some good reason for not making such a disclosure.” 80. He continued (at paragraph 37): “This was obviously required by Parliament because it was important (for the protection of children and vulnerable adults) that the information should be disclosed even if it only might be true. If it might be true, the person who was proposing to employ the claimant should be entitled to take it into account before the decision was made as to whether or not to employ the claimant. This was the policy of the legislation in order to serve a pressing social need. In my judgment it imposes too heavy an obligation on the Chief Constable to require him to give an opportunity for a person to make representations prior to the Chief Constable performing his statutory duty of disclosure.” 81. On the application of Article 8, assuming that it was engaged, he noted (at paragraph 41): “... [H]ow can the Chief Constable’s decision to disclose be challenged under article 8? As already indicated, the Chief Constable starts off with the advantage that his statutory role is not in conflict with article 8, because the statute meets the requirements of article 8(2). It follows also, that as long as the Chief Constable was entitled to form the opinion that the information disclosed might be relevant, then absent any untoward circumstance which is not present here, it is difficult to see that there can be any reason why the information that ‘might be relevant’, ought not to be included in the certificate. I accept that it is possible that there could be cases where the information should not be included in the certificate because it is disproportionate to do so; the information might be as to some trifling matter; it may be that the evidence made it so unlikely that the information was correct, that it again would be disproportionate to disclose it. These were not, in my judgment, the situations on the facts before the Chief Constable.” 2. R (R) v Durham Constabulary and another [2005] UKHL 21 82. The case of R (R) concerned the issue of a “reprimand or warning” to a young person for alleged offences of indecent assault. Unlike the issue of a caution, the issue of a reprimand or warning did not require the person’s consent. However, like a caution, the issue of a reprimand/warning required the individual to admit to the offence. The issue of the reprimand/warning in the case had given rise to an obligation that the young offender in question be subject to registration pursuant to the Sex Offenders Act 1977. The claimant alleged that the reprimand had violated Article 6 of the Convention because it had been issued without his consent and the consequences of its issue, including the need to register on the Sex Offender Register, had not been properly identified to him. 83. The House of Lords unanimously rejected the claim. Lord Bingham of Cornhill doubted whether Article 6 had been engaged at all, but even assuming that it was, he concluded that it had ceased to apply once the decision had been made not to prosecute the claimant. He noted that there was little case-law from this Court as to the meaning of “determination” of criminal charges and expressed the view that the determination of a criminal charge, to be properly so regarded, must expose the subject of the charge to the possibility of punishment, whether in the event punishment was imposed or not. He considered therefore that a process which could only culminate in measures of a preventative, curative, rehabilitative or welfare-promoting kind would not ordinarily involve the determination of a criminal charge. He accordingly concluded that neither the warning of the claimant nor the decision to warn him involved the determination of a criminal charge against him. Had they done so, Lord Bingham noted, it was acknowledged by the police force that there had been no valid waiver by him of his fair trial right. 3. R (S) v Chief Constable of West Mercia and Criminal Records Bureau [2008] EWHC 2811 (Admin) 84. The claimant challenged the inclusion under section 113B(4) of the 1997 Act of other information provided by the chief constable on an ECRC regarding alleged offences of which he had been found not guilty. 85. The High Court upheld the challenge and quashed the decision on the basis that the decision-maker had not taken reasonable steps to ascertain whether the allegations that had been made had been true and why the claimant had been acquitted. On the facts of the case it was clear that the Magistrates’ Court had acquitted the claimant because it took the view that he was innocent in the full sense of the word. The High Court observed: “I stress, however, that this decision is very specific to the facts of this case. I do not suggest for one minute that allegations should not be disclosed in an ECRC simply because the alleged offender has been acquitted. The circumstances surrounding the acquittal are all important. There will be instances where an alleged offender is acquitted but only because the Magistrates (or Jury) entertain a reasonable doubt about the alleged offender’s guilt. The tribunal of fact may harbour substantial doubts. In such circumstances, however, it might well be perfectly reasonable and rational for a Chief Constable to conclude that the alleged offender might have committed the alleged offence ...” 4. R (Pinnington) v Chief Constable of Thames Valley Police [2008] EWHC 1870 (Admin) 86. The Divisional Court considered a claim by an individual aggrieved by the disclosure in an ECRC of three allegations of sexual abuse of autistic persons in his care, where he had been interviewed by the police about one of the allegations but no charges were pursued. 87. The judge conducted a detailed analysis of the allegations and concluded: 58. It follows that in my judgment the decision to disclose the three allegations was lawful ... I recognise how painful such disclosure must be for the claimant, and how damaging its consequences may be. It seems to me, however, that all this follows inevitably from the terms of the legislation and is fully in line with the legislative policy as explained by Lord Woolf in R (X) v Chief Constable of the West Midlands Police. In relation to employment with children or vulnerable adults, it is information of which an employer should be aware. It is then for the employer to decide whether the employment of the person concerned involves an unacceptable risk. 59. I am troubled by the fact that the claimant’s new employer in this case apparently operated a blanket policy of insisting on a ‘clean’ certificate, so that the disclosure of the three allegations led inevitably to the claimant’s dismissal on the transfer of his employment to that employer on a reorganisation at work. The legislation imposes a relatively low threshold for disclosure in the certificate in order to enable an employer to make a properly informed decision. But it is important that employers understand how low that threshold is and the responsibility that it places in practice upon them. A properly informed decision requires consideration not only of the information disclosed in the certificate but also of any additional information or explanation that the employee may provide. The operation of a blanket policy of insisting on a ‘clean’ certificate leaves no room for taking into account what the employee may have to say. That is a matter of particular concern if it leads to the dismissal of an existing employee or of someone whose employment is transferred to the employer on a reorganisation. On the basis of the limited material available to the court, I confess to some surprise that the claimant was advised in this case that he had no reasonable prospect of success in a claim for unfair dismissal resulting from the application of such a policy ...” 5. Chief Constable of Humberside & Others v The Information Commissioner & Another [2009] EWCA Civ 1079 88. The question for examination by the Court of Appeal in its judgment handed down on 19 October 2009 was whether certain principles of the Data Protection Act 1998, namely principle 1 (personal data shall be processed fairly and lawfully), principle 3 (personal data shall be adequate relevant and not excessive) and principle 5 (personal data shall not be kept for longer than necessary), required the police to delete certain old convictions from the PNC. Lord Justice Waller noted at the outset: “1. ... The complaint in each case follows the disclosure of the convictions pursuant to a request by the ... CRB ... or, in one case, a request by one of the individuals herself, and it is important to emphasise at the outset that the complaint about retention flows in reality not from the retention itself but from the fact that, if retained, disclosure may follow. In respect of each of those convictions the Information Tribunal (the IT) has upheld the view of the Information Commissioner (the IC) that they should be deleted. However the ramifications are far wider than these five cases since, if these convictions must be deleted and if the police are to treat people consistently, the application of any viable system of weeding would probably lead to the deletion of around a million convictions.” 89. He clarified the effect of the “stepping down” policy on disclosure in the context of criminal records checks, noting: “3. ... [I]t seems that both the Police and the IT understood that the result of stepping down would be that in certain circumstances the CRB would not have access to ‘stepped down’ convictions when preparing ‘standard disclosure certificates’ (as opposed to ‘enhanced disclosure certificates’) under Part V of the Police Act 1997. It is now accepted that that is not accurate. Under Part V of the 1997 Act ‘stepped down’ convictions are required to be revealed even on ‘standard disclosure certificates’, and thus although ‘stepping down’ prevents disclosure in many circumstances to persons other than the police, it does not prevent disclosure by the police in many others including the circumstances under which disclosure was made of four of the convictions the subject of this appeal.” 90. Waller LJ noted that PNC information was used for employment vetting. He observed that CRCs and ECRCs would contain details of spent convictions which, he indicated, provided an important protection to employers. He noted: “... Some emphasis is placed by [counsel for the intervenor] that no statutory obligation is placed on the police to retain data under the Police Act 1997, but on any view Part V of the Act seems to recognise that the data will be there to be provided.” 91. Taking as an example the case of one of the individuals concerned, Waller LJ considered the purposes for which the data had been recorded: “35. ... [I]t seems to me to be clear that one of the purposes for which the police retained the data on the PNC was to be able to supply accurate records of convictions to the CPS, the courts and indeed the CRB. ‘Rendering assistance to the public in accordance with force policies’ clearly covers the roles the police seek to perform in those areas and if there was any doubt about it the recipients include ‘Employers’ ‘the courts’ and ‘law enforcement agencies’.” 92. He continued: “36. If one then poses the question whether the Data being retained is excessive or being retained for longer than necessary for the above purposes there is, it seems to me, only one answer, since for all the above a complete record of convictions spent and otherwise is required. That seems to me to be a complete answer to the appeal ...” 93. Even if a narrower approach to police purposes were adopted, Waller LJ considered that the retention of the data was lawful under the DPA 1998. He noted: “43. ... If the police say rationally and reasonably that convictions, however old or minor, have a value in the work they do that should, in effect, be the end of the matter ... It is simply the honest and rationally held belief that convictions, however old and however minor, can be of value in the fight against crime and thus the retention of that information should not be denied to the police.” 94. He continued: “44. I emphasise the word ‘retention’ because if there is any basis for complaint by the data subjects in this case, it seems to me to relate to the fact that in certain circumstances this information will be disclosed, but that is because Parliament has made exceptions to the Rehabilitation of Offenders Act. What is more, the circumstances in which there will be disclosure are circumstances in which the Data Subject would be bound to give the correct answer if he or she were asked. It is not as it seems to me the purpose of the 1998 [Data Protection] Act to overrule the will of Parliament by a side wind.” 95. As to the complaint of one of the individuals concerned, S.P., that she had been assured in 2001 that the reprimand she had received aged thirteen would be removed from her record when she was eighteen if she did not get into anymore trouble and that the retention of the reprimand on the PNC after her eighteenth birthday was therefore unfair under the first data protection principle, Waller LJ, with whom Lord Justice Hughes agreed, held: “48. ... It seems to me that if it is fair to retain convictions under the new policy it does not become unfair to do so simply because the data subject was told of what the policy then was when being convicted or reprimanded. Furthermore, the deletion of this reprimand leading (as it would have to) to deletion of many others would be likely to prejudice the prevention and detection of crime and the apprehension or prosecution of offenders. The court and the CPS need the full information, never mind the fact the police are of the view that for their operational purposes they need the same.” 96. Finally, on the argument raised by the individuals that retention of the data violated Article 8 of the Convention, Waller LJ indicated that he was not persuaded that Article 8 § 1 was engaged at all in relation to the retention of the record of a conviction. He was of the view that disclosure might be another matter, but reiterated that the appeal before him was not about disclosure. Even if his conclusion were wrong, he considered that the processing was in accordance with the law and necessary in a democratic society. 97. On the Article 8 question, Lord Justice Carnwath noted as follows: “78. ... [W]ith regard to the Human Rights Convention, it is significant that the [Data Protection] Directive is itself specifically linked to the need to respect ‘fundamental rights and freedoms, notably the right to privacy...’, and that it refers in that respect to the European Convention on Human Rights (Preamble (2), (10)). This suggests that the maintenance of such a complete register of convictions, as implicitly endorsed by Article 8(5) of the Directive, should not normally raise any separate issues under the Convention.” 98. He referred to “considerable doubt” as to whether recording the mere fact of a conviction could ever engage Article 8 in any case, distinguishing S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR, on the basis that it concerned the data of unconvicted persons and was, in his view, accordingly no authority for the proposition that a record of the mere fact of a conviction engaged Article 8. 99. As regards the specific facts of S.P.’s case, given the assurance that she had received from the police that the reprimand would be removed when she reached the age of 18 and the manner in which the police had sought to justify their subsequent decision not to do so, Carnwath LJ considered that the decision of the first-instance tribunal that the retention of the data was unfair and in breach of the first data protection principle could not be faulted in law. 100. Permission to appeal was refused by the Supreme Court on 24 February 2010. 6. R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3 101. In its judgment in R (L), handed down on 29 October 2009, ten days after the Court of Appeal’s ruling in Chief Constable of Humberside, the Supreme Court considered the Court of Appeal’s ruling in R (X) (see paragraphs 77-81 above) in the context of a case concerning disclosure of police information under the predecessor of section 113B(4) in the context of an ECRC. The appellant had secured a job as a playground assistant and the school required an ECRC to which the appellant consented. The ECRC disclosed that the appellant had been suspected of child neglect and non-cooperation with social services. The appellant had not been charged with, or convicted of, any offence, nor had she received a caution. Her employment was subsequently terminated and she brought judicial review proceedings, arguing that the disclosure of the information had violated her rights under Article 8. At issue was whether the requirement in the 1997 Act that chief officers provide information which “might be relevant” and “ought to be disclosed” when an ECRC was requested, was proportionate. 102. As to whether Article 8 was engaged by the mere retention of data, after reviewing the case-law of this Court, Lord Hope indicated (at paragraph 27): “This line of authority from Strasbourg shows that information about an applicant’s convictions which is collected and stored in central records can fall within the scope of private life within the meaning of article 8(1), with the result that it will interfere with the applicant’s private life when it is released. It is, in one sense, public information because the convictions took place in public. But the systematic storing of this information in central records means that it is available for disclosure under Part V of the 1997 Act long after the event when everyone other than the person concerned is likely to have forgotten about it. As it recedes into the past, it becomes a part of the person’s private life which must be respected. Moreover, much of the other information that may find its way into an ECRC relates to things that happen behind closed doors. A caution takes place in private, and the police gather and record information from a variety of sources which would not otherwise be made public. It may include allegations of criminal behaviour for which there was insufficient evidence to prosecute ... It may even disclose something that could not be described as criminal behaviour at all. The information that was disclosed on the appellant’s ECRC was of that kind.” 103. He therefore considered that decisions taken by chief constables in the context of ECRCs were likely to fall within the scope of Article 8 in every case as the information in question was stored in files held by the police. He noted that the approach taken by the police to questions of disclosure at the time was modelled on Lord Woolf CJ’s ruling in R (X) (see paragraphs 77-81 above). 104. Lord Hope indicated that the approach to disclosure under the applicable legislation involved a two-part test. In the first instance, the chief constable was required to consider whether the information might be relevant. Having concluded in the affirmative, he then had to turn his mind to the question whether the information ought to be included in the certificate. This required consideration of whether there was likely to be an interference with the individual’s private life and, if so, whether the interference could be justified. This raised the question whether the Court of Appeal in R (X) had struck the balance between the competing interests in the right place. 105. Turning to examine the approach of the Court of Appeal in that case, Lord Hope first endorsed the views expressed there as to the compatibility of the legislation itself with Article 8 (see paragraph 77 above). He noted that, as in that case, the appellant in the present case did not argue that the legislation itself contravened Article 8 and accepted that it could be interpreted and applied in a manner that was proportionate. Lord Hope continued: “42. So the issue is essentially one of proportionality. On the one hand there is a pressing social need that children and vulnerable adults should be protected against the risk of harm. On the other there is the applicant’s right to respect for her private life. It is of the greatest importance that the balance between these two considerations is struck in the right place ... [T]he use that is being made of the requirement to obtain an ECRC has increased substantially since the scheme was first devised. The number of disclosures of information by means of ECRCs has exceeded 200,000 for each of the last two years (215,640 for 2007/2008; 274,877 for 2008/2009). Not far short of ten per cent of these disclosures have had section 115(7) [now section 113B(4) – see paragraphs 55 above] information on them (17,560 for 2007/2008; 21,045 for 2008/2009). Increasing use of this procedure, and the effects of the release of sensitive information of this kind on the applicants’ opportunities for employment or engaging in unpaid work in the community and their ability to establish and develop relations with others, is a cause of very real public concern ...” 106. He noted in this regard that it was no answer to these concerns that the ECRC was issued on the application of the persons concerned. While he accepted that they could choose not to apply for a position of the kind that required a certificate, he considered that they had, in reality, no free choice in the matter if an employer in their chosen profession insisted, as he was entitled to, on an ECRC. He observed: “43. ... The answer to the question whether there was any relevant information is likely to determine the outcome of their job application. If relevant information is disclosed they may as a result be cut off from work for which they have considerable training and experience. In some cases they could be excluded permanently from the only work which is likely to be available to them. They consent to the application, but only on the basis that their right to private life is respected.” 107. Lord Hope considered that the effect of the approach taken to the issue in R (X) had been to tilt the balance against the applicant too far. The correct approach, he explained, was that neither consideration had precedence over the other. He proposed that the relevant guidance to officers making a decision on disclosure under the provisions should be amended: “45. ...so that the precedence that is given to the risk that failure to disclose would cause to the vulnerable group is removed. It should indicate that careful consideration is required in all cases where the disruption to the private life of anyone is judged to be as great, or more so, as the risk of non-disclosure to the vulnerable group. The advice that, where careful consideration is required, the rationale for disclosure should make it very clear why the human rights infringement outweighs the risk posed to the vulnerable group also needs to be reworded. It should no longer be assumed that the presumption was for disclosure unless there was a good reason for not doing so.” 108. Lord Neuberger, who indicated that his judgment largely echoed that of Lord Hope, was also firmly of the view that Article 8 was engaged in the case, noting: “68. ...An enhanced criminal record certificate ... which contains particulars of any convictions (potentially including spent convictions) or cautions ..., or any other information ‘which might be relevant’ and which ‘ought to be included in the certificate’ ...will often have a highly significant effect on the applicant. In the light of the wide ambit of section 115 (extending as it does to social workers and teachers, as well as to those ‘regularly caring for, training, supervising or being in sole charge of’ children), an adverse ECRC ... will often effectively shut off forever all employment opportunities for the applicant in a large number of different fields ...” 109. He further observed: “69. ... Even where the ECRC records a conviction (or caution) for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer, particularly in the present culture, which, at least in its historical context, can be said to be unusually risk-averse and judgmental, to reject the applicant ...” 110. Lord Neuberger also rejected the argument that Article 8 was not engaged because under the relevant legislation the claimant herself had requested the ECRC, noting: “73. ... Where the legislature imposes on a commonplace action or relationship, such as a job application or selection process, a statutory fetter, whose terms would normally engage a person’s Convention right, it cannot avoid the engagement of the right by including in the fetter’s procedural provisions a term that the person must agree to those terms. Apart from this proposition being right in principle, it seems to me that, if it were otherwise, there would be an easy procedural device which the legislature could invoke in many cases to by-pass Convention rights.” 111. He considered the aim of Part V of the 1997 Act, namely to protect vulnerable people, to be unexceptionable and explained how this was achieved by the requirement that relevant information available to the police about an applicant for a post involving responsibility for such vulnerable people be provided to the prospective employer. He continued: “75. ... It is then for that employer to decide whether the information is relevant, and, if so, whether it justifies refusing to employ the applicant. As already mentioned, however, it seems to me realistic to assume that, in the majority of cases, it is likely that an adverse ECRC ... will represent something close to a killer blow to the hopes of a person who aspires to any post which falls within the scope of the section ...” 112. Turning to consider whether there was an infringement of Article 8 in the case, Lord Neuberger was prepared to proceed on the basis that there was “nothing objectionable” in the requirement that an ECRC had to contain details of convictions and cautions, even though, he noted, it might on occasions be “rather harsh” on the person concerned. However, like Lord Hope, he was of the view that where other information provided by the chief constable was concerned, the decision on whether to include it in an ECRC had to incorporate a proportionality assessment and it might well be necessary to seek the prior views of the person concerned. 113. Lords Saville and Brown agreed with Lord Hope and, in the case of Lord Brown, Lord Neuberger. 114. Lord Scott, in the minority, considered (at paragraph 57) that if the compilation and retention of the information was unexceptionable, and the information was relevant to the appellant’s suitability for the employment sought, then it was difficult to see on what basis her attack on the inclusion of the information in the ECRC could succeed. He continued: “58. It is at this point, as it seems to me, that it becomes necessary to remember that it was she who applied for the certificate. I do not doubt that the need for the certificate would have been impressed on her by CSE and that she would have realised that unless she agreed to make the application her chances of obtaining the employment position she desired would be reduced. She may or may not have had in mind the full implications of subsection (7) of section 115 and it would probably not have occurred to her that the history of her delinquent 13 year old son and her failure to have controlled his delinquency would be known to the police and might be considered relevant information. But it cannot, in my opinion, possibly be said that the police response showed a lack of respect for her private life. It was she who, in making the application for an ECRC, invited the exercise by the chief police officer of the statutory duty imposed by section 115(7).” 115. Lord Scott accordingly endorsed the approach taken in R (X). 7. R (C) v Chief Constable of Greater Manchester and Secretary of State for the Home Department [2010] EWCA 1601 and [2011] EWCA Civ 175 116. Following R (L), the High Court quashed a decision by the chief constable to disclose details of a sexual allegation made against the claimant in an ECRC on grounds of procedural impropriety, because the claimant’s views had not been sought and because the decision to disclose was disproportionate to the level of risk disclosed. The court granted an injunction to prevent future disclosure. 117. On appeal, the Court of Appeal upheld the decision to quash the disclosure on grounds of procedural impropriety but, emphasising that the primary decision-maker was the chief constable who would take a fresh decision on the basis of the material now before him, allowed the appeal against the injunction. 8. R (F and another) v Secretary of State for the Home Department [2010] UKSC 17 118. In R (F and another) v Secretary of State for the Home Department, the respondents were convicted sex offenders subject to notification requirements under section 82 of the Sexual Offences Act 2003 (SOA 2003), whereby all those sentenced to 30 months’ imprisonment or more for a sexual offence are registered on the sex offenders register and subject to a lifelong duty to notify police of their living and travelling arrangements, with no right for review. The question in the appeal was whether the absence of any right to review rendered the notification requirements disproportionate to the legitimate aims they sought to pursue and thus incompatible with Article 8 of the Convention. Lord Phillips noted: “41. The issue in this case is one of proportionality. It is common ground that the notification requirements interfere with offenders’ article 8 rights, that this interference is in accordance with the law and that it is directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The issue is whether the notification requirements, as embodied in the 2003 Act, and without any right to a review, are proportionate to that aim. That issue requires consideration of three questions. (i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review? The issue is a narrow one. The respondents’ case is that the notification requirements cannot be proportionate in the absence of any right to a review. The challenge has been to the absence of any right to a review, not to some of the features of the notification requirements that have the potential to be particularly onerous.” 119. He found that the notification requirements were capable of causing significant interference with Article 8 rights. However, he continued (at paragraph 51): “... This case turns, however, on one critical issue. If some of those who are subject to lifetime notification requirements no longer pose any significant risk of committing further sexual offences and it is possible for them to demonstrate that this is the case, there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations in order to provide information about their places of residence and their travel plans. Indeed subjecting them to these requirements can only impose an unnecessary and unproductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification requirements and this number will inevitably grow.” 120. He concluded: “56. No evidence has been placed before this court or the courts below that demonstrates that it is not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who pose no significant risk of re-offending. It is equally true that no evidence has been adduced that demonstrates that this is possible. This may well be because the necessary research has not been carried out to enable firm conclusions to be drawn on this topic. If uncertainty exists can this render proportionate the imposition of notification requirements for life without review under the precautionary principle? I do not believe that it can. 57. ... I think that it is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified. As the courts below have observed, it is open to the legislature to impose an appropriately high threshold for review. Registration systems for sexual offenders are not uncommon in other jurisdictions. Those acting for the first respondent have drawn attention to registration requirements for sexual offenders in France, Ireland, the seven Australian States, Canada, South Africa and the United States. Almost all of these have provisions for review. This does not suggest that the review exercise is not practicable. 58. For these reasons I have concluded that ... the notification requirements constitute a disproportionate interference with article 8 rights because they make no provision for individual review of the requirements.” 121. The Supreme Court issued a declaration that section 82 of the SOA 2003 was incompatible with the Convention. III. RELEVANT COUNCIL OF EUROPE TEXTS A. Data protection 122. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). Article 5, which deals with quality of data, provides: “Personal data undergoing automatic processing shall be: a. obtained and processed fairly and lawfully; b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are stored; ... e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” 123. Article 6 deals with “special categories of data” and stipulates that personal data relating to criminal convictions may not be processed automatically unless domestic law provides appropriate safeguards. 124. Pursuant to Article 9, derogations are permitted where they are necessary in a democratic society in the interests of, inter alia, public safety, the suppression of criminal offences or protecting the rights and freedoms of others. 125. The Committee of Ministers adopted Recommendation No. R (87) 15 regulating the use of personal data in the police sector on 17 September 1987, in the context of a sectoral approach to data protection intended to adapt the principles of the Data Protection Convention to the specific requirements of particular sectors. An Explanatory Memorandum (“EM”) sets out the background to the Recommendation’s adoption, and notes at paragraph 4: “Given the increased activities of police forces in the lives of individuals necessitated by new threats to society posed by terrorism, drug delinquency, etc as well as a general increase in criminality, it was felt even more necessary to establish clear guidelines for the police sector which indicate the necessary balance needed in our societies between the rights of the individual and legitimate police activities when the latter have recourse to data-processing techniques.” 126. It further observes that concerns which prompted the elaboration of the Data Protection Convention in regard to the increasing recourse to automation in all sectors are most acutely felt in the police sector, for it is in this domain that the consequences of a violation of the basic principles laid down in the Convention could weigh most heavily on the individual. 127. As regards the derogations permitted under Article 9 of the Data Protection Convention, the EM reiterates that they are only permitted if provided for by law and necessary in a democratic society in the interests of, inter alia, the “suppression of criminal offences”. It continues: “20 ... Bearing in mind that the European Court of Human Rights in its judgment in the Malone Case laid down a number of strict criteria (precision, certainty, foreseeability, etc), it is thought that the principles contained in this non-binding legal instrument can provide helpful guidance to the legislator as to the interpretation of the derogation in Article 9, paragraph 2, of the Data Protection Convention when regulating the collection, use, etc of personal data in the police sector. This point should be borne in mind, for example, in the context of paragraph 2.1.” 128. Principle 1.1 of the Recommendation provides: “Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation.” 129. The EM emphasises the importance of such supervisory authority enjoying genuine independence from police control. 130. Principle 2 concerns collection of data and includes the following: “2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.” 131. The EM explains that Principle 2.1 excludes an “open-ended, indiscriminate” collection of data by the police and expresses a “qualitative and quantitative” approach to Article 5(c) of the Data Protection Convention. The Principle attempts to fix the boundaries to the exception in Article 9 of the Data Protection Convention by limiting the collection of personal data to such as are necessary for the prevention of a real danger or the suppression of a specific criminal offence, unless domestic law clearly authorises wider police powers to gather information. 132. Storage of data is addressed in Principle 3. Principle 3.1 provides that as far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law. The EM explains: “49. Personal data when collected will subsequently be the subject of a decision concerning their storage in police files. Principle 3.1 addresses the requirements of accuracy and storage limitation. The data stored should be accurate and limited to such data as are necessary to enable the police to perform its lawful tasks ... 50. This principle is important given the fact that the commitment of personal data to a police file may lead to a permanent record and indiscriminate storage of data may prejudice the rights and freedoms of the individual. It is also in the interests of the police that it has only accurate and reliable data at its disposal.” 133. Principle 5 deals with communication of data. Principle 5.1 permits communication of data between police bodies, to be used for police purposes, if there exists a legitimate interest for such communication within the framework of the legal powers of these bodies. In respect of communication to other public bodies, Principle 5.2 stipulates: “5.2.i. Communication of data to other public bodies should only be permissible if, in a particular case: a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this. 5.2.ii. Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case: ... b. the communication is necessary so as to prevent a serious and imminent danger.” 134. As to the possibility of communicating indispensable data to public bodies under Principle 5.2.i.b, the EM explains that it is recognised that certain public bodies engage in activities which are similar in some ways to police activities and that information held by the police may be of value to those activities. Regarding the possibility of communicating data to prevent a serious and imminent danger, the EM recalls that this will only “exceptionally” allow communication and that the danger must be both serious and imminent, given that Principle 5.2.ii is only concerned with exceptional cases justifying communication. 135. As regards communication to private parties, Principle 5.3 provides: “5.3.ii. The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority. 5.3.ii. Communication to private parties is exceptionally permissible if, in a particular case: ... b. the communication is necessary so as to prevent a serious and imminent danger.” 136. The EM acknowledges that it may occasionally be necessary for the police to communicate data to private bodies, although not on the same scale as envisaged in the case of mutual assistance between the police and other public bodies. It continues: “Once again, Principle 5.3 treats these as exceptional cases, requiring a clear legal obligation or authorisation (for example the consent of a magistrate), or the consent of the supervisory authority. In the absence of these factors, Principle 5.3 repeats the same conditions set out in Principle 5.2.ii.” 137. Concerning Principle 5 generally, the EM notes: “Outside the framework of communication within the police sector, the conditions governing transfer are stricter, given the fact that the communication may be for non-police purposes stricto sensu. The exceptional nature of the circumstances allowing communication set out in Principles 5.2 and 5.3 is stressed. It will be noted that circumstances a and b in both Principles 5.2.ii and 5.3.ii are specifically referred to as ‘exceptional’.” 138. Principle 7 deals with length of storage and updating of data. Pursuant to Principle 7.1 measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. It further provides: “... For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.” 139. The EM explains that it is essential that periodic reviews of police files are undertaken to ensure that they are purged of superfluous or inaccurate data and kept up to date. It notes that Principle 7.1 lists certain considerations which should be borne in mind when determining whether or not data continue to be necessary for the prevention and suppression of crime or for the maintenance of public order. 140. Principle 7.2 provides: “Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law.” 141. The EM notes that domestic law may authorise the means for laying down such rules or that, alternatively, rules could be formulated by the supervisory authority itself in consultation with police bodies. It explains that where the police themselves elaborate rules, the supervisory authority should be consulted as to their content and application. B. Rehabilitation of offenders 142. Recommendation No. R (84) 10 of the Committee of Ministers on the criminal record and rehabilitation of convicted persons (adopted on 21 June 1984) notes in its preamble that any use of criminal record data outside the criminal trial context may jeopardise the convicted person’s chances of social reintegration and should therefore be restricted “to the utmost”. It invited member States to review their legislation with a view to introducing a number of measures where necessary, including provisions limiting the communication of criminal record information and provisions on rehabilitation of offenders, which would imply the prohibition of any reference to the convictions of a rehabilitated person except on compelling grounds provided for in national law. IV. RELEVANT EUROPEAN UNION TEXTS A. The Treaty on the Functioning of the European Union (“TFEU”) 143. The TFEU sets out in Article 16 the right to the protection of personal data concerning them. It requires the European Parliament and the Council to lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law; and the rules relating to the free movement of such data. B. Charter of Fundamental Rights of the European Union (2000) 144. The EU Charter of Fundamental Rights includes the right to protection of personal data. Article 8 of the Charter reads: “1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.” C. Other instruments 145. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the Data Protection Directive”) provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows Member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13). 146. Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (“the Data Protection Framework Decision”) was adopted on 27 November 2008. Its purpose is to ensure a high level of protection of the fundamental rights and freedoms of natural persons, and in particular their right to privacy, with respect to the processing of personal data in the framework of cross-border police and judicial cooperation in criminal matters while guaranteeing a high level of public safety. 147. Article 3 of the Data Protection Framework Decision provides that personal data may be collected by the competent authorities only for specified, explicit and legitimate purposes and may be processed only for the same purpose for which data were collected. Processing of the data must be lawful and adequate, relevant and not excessive in relation to the purposes for which they are collected. Article 5 provides that appropriate time-limits must be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures must be in place to ensure that these time-limits are observed. 148. In January 2012 the European Commission published proposals, based inter alia on Article 16 TFEU, for the comprehensive reform of the EU’s data protection framework. The proposals are currently under negotiation. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 149. The applicant complained under Article 7 about the retention and disclosure of her caution data, referring in particular to the change in policy subsequent to the administration of the caution, which has led to her caution being retained for life, and the impact on her employment prospects. 150. The Court reiterates that it is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44; Tătar and Tătar v. Romania (dec.), no. 67021/01, § 47, 5 July 2007; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009). By virtue of the jura novit curia principle, it has, for example, previously considered of its own motion complaints under Articles not relied on by the parties (see, for example, Scoppola (No. 2), cited above, §§ 54-55; B.B. v. France, no. 5335/06, § 56, 17 December 2009 and Şerife Yiğit v. Turkey [GC], no. 3976/05, §§ 52-53, 2 November 2010). The Court considers that in the light of its case-law (see, for example, Leander v. Sweden, 26 March 1987, Series A no. 116; S. and Marper, cited above; and B.B., cited above) it is appropriate to examine the applicant’s complaints first from the standpoint of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 151. The Government contended that no issue under Article 8 arose. A. Admissibility 1. The parties’ submissions (a) The Government 152. The Government invited the Court to declare the application inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies, emphasising the importance of allowing the State the opportunity to prevent or put right the alleged violations. 153. They noted that the applicant had not attempted to bring any legal proceedings to challenge the police retention of the caution or its inclusion on the criminal record certificate. Her reference to an application for legal aid was in respect of a potential claim against the Trust for failing to employ her, not a challenge to the retention or disclosure of the caution data. The advice from her lawyer in 2006 related to whether the issue of the caution itself could be revisited and not the legality of its retention beyond the five-year period. 154. The Government emphasised that as a matter of both principle and precedent, judicial review was available for an aggrieved individual to challenge police retention of the data in question. They contended that in light of the Human Rights Act (see paragraphs 72-76 above), the applicant could have pursued any allegation of a violation of a Convention right. She could have made a similar complaint to the Information Commissioner under the Data Protection Act (see paragraph 71 above). Neither of these remedies had been pursued. As a consequence of her failure, the domestic courts had not been able to examine her complaints and to take action if they agreed that a violation had occurred. The Government referred to the judicial review cases listed above concerning ECRCs as well as the Court of Appeal’s consideration in Chief Constable of Humberside of the retention of police information as evidence that the courts in England adopted a careful and considered analysis of the competing rights. In particular, the recent case of R (L) was evidence that the courts were willing to give careful scrutiny to the lawfulness and proportionality of retention and disclosure of information under the 1997 Act by reference to Convention rights. The same general principles would be expected to be applied by the Northern Irish courts. 155. Then Government further explained that in any judicial review proceedings, the defendant, who would be the relevant chief constable, would be entitled to adduce evidence to explain why a particular retention decision was made, and what ameliorating measures might be operated. (b) The applicant 156. The applicant emphasised that the burden of proof was on a Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time. Further, she noted that the rule of exhaustion was neither absolute nor capable of being applied automatically: it had to be applied with some degree of flexibility and without excessive formalism in the human rights context. 157. The applicant also disputed the suggestion that a remedy was provided by the Data Protection Act. She noted the possibility for an individual to check the accuracy of data held about them and to seek amendment of inaccurate data, but emphasised that she did not dispute the accuracy of the data in her case. 158. She explained that she had sought legal advice on the merits of judicial review and had applied for legal aid, which had been refused. In her view this had determined her attempt to exhaust domestic remedies. 2. The Court’s assessment 159. The Court observes that the applicant’s complaint to the Court was lodged following the withdrawal of an offer of employment which had been made to her after she had disclosed, and the Criminal Records Office had verified, the existence of a caution. The Court is satisfied that the job offer was withdrawn on account of the disclosure of the caution; the Government have not sought to argue otherwise. The applicant complained about the change in policy regarding retention of caution data, which means that it would now be retained for life, and the impact of this change on her employment prospects. It is clear that for as long as her data are retained and capable of being disclosed, she remains a victim of any potential violation of Article 8 arising from retention or disclosure. As Waller LJ noted in Chief Constable of Humberside, the complaint about retention in reality flows not from the retention itself but from the fact that, if retained, disclosure may follow (see paragraph 94 above). It is clear that if the applicant was able to have her data deleted, then it would no longer be available for disclosure. Alternatively, a remedy which prevented the disclosure of the data might have provided adequate redress. The Court’s examination of whether she has exhausted available remedies must therefore necessarily encompass alleged past, present and potential future violations in respect of the retention and disclosure of the applicant’s data. 160. In this regard the Court observes that the framework governing retention and disclosure of criminal record data in Northern Ireland has undergone a number of changes, both legislative and policy-based, since the administration of the applicant’s caution in 2000. As the applicant’s complaint is of a continuing nature, the Court must consider the Government’s objection in the context of the different applicable regimes. 161. It is appropriate to address first the applicant’s contention that she sought legal advice and legal aid with a view to challenging the retention and disclosure of her caution data. In this regard, the Court notes, as the Government pointed out, that the legal advice she received from her solicitors in 2006 concerned the prospects of a challenge to the issue of the caution, and not its retention or disclosure (see paragraph 15 above). Similarly, as the Government explained, the applicant’s attempt to secure legal aid in 2007 was in respect of a potential claim against the Trust for refusing to employ her, and not against the chief constable for retention and disclosure of her caution data (see paragraph 17 above). The Court therefore accepts that she has not sought to pursue legal proceedings against the police in respect of the retention or disclosure of her data. 162. Article 35 § 1 requires that the applicant exhaust available and effective domestic remedies before seeking redress before this Court. The Court recalls that where the Government claim non-exhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Kennedy v. the United Kingdom, no. 26839/05, § 109, 18 May 2010). 163. 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. The Court has accordingly recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000-VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007 ‑ 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). 164. The Government argued that the applicant could have brought legal proceedings to challenge the police retention of the caution or its inclusion in any criminal record certificate. Such an action could have proceeded by way of judicial review or by way of a complaint to the Information Commissioner under the Data Protection Act. In support of their submissions, the Government have referred to a number of cases decided by the domestic courts as illustrative of the courts’ jurisdiction and willingness to assess compliance of retention or disclosure of criminal record data with Article 8 of the Convention (see paragraphs 77-121 above). 165. The Court observes, first, that the majority of these cases concerned only disclosure, and not retention, of criminal record data. Second, the disclosure in the cases related to other “information” pursuant to section 113B(4) (or its predecessor section) of the 1997 Act (see paragraph 55 above), and not disclosure of caution or conviction information either under common law police powers or pursuant to section 113A(3) or section 113B(3) of the Act (see paragraphs 49 and 54 above). Third, none of the cases to which the Government have referred were brought in respect of the legal framework in place in Northern Ireland. It is with these considerations in mind that the Court now turns to examine, in the circumstances of the applicant’s case and in light of the judgments identified, whether either of the remedies proposed by the Government was an effective one available in theory and in practice, 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. 166. The Court notes that in 2006 retention and disclosure of caution data in Northern Ireland were carried out on the basis of the common law powers of the police (see paragraphs 24 and 47 above), and that the general principles of the Data Protection Act applied to the processing of any data. Guidance was available in the form of the MOPI Guidance (see paragraph 36-41 and 58-59 above) and the ACPO Guidelines (see paragraphs 42-46 and 60 above); it is not clear whether the 2005 Code of Practice was adopted by the PSNI (see paragraphs 33-35 above). 167. The guidance demonstrates that in deciding whether to retain data, the police enjoy a certain degree of discretion (see paragraphs 37, 39-41 and 46 above). However, the MOPI Guidance refers to a “presumption” in favour of retention where the data are considered necessary and recommends that in cases concerning serious offences, records be retained until the subject has reached one hundred years of age (see paragraphs 39-40 above). The ACPO Guidelines specify in their general principles that records are to be retained until a subject reaches one hundred years of age; it appears that no distinction is drawn between offences for the purpose of the length of the retention period (see paragraph 45 above). Although the Guidelines refer to the discretion enjoyed by chief constables in “exceptional circumstances” to authorise deletion of data, the circumstances envisaged are very limited: Appendix 2 indicates that exceptional cases will be rare and gives the example of where it is established beyond reasonable doubt that no offence existed (see paragraph 46 above). 168. As regards disclosure of criminal record information for employment purposes, the MOPI Guidance refers to the statutory scheme for disclosure created by the 1997 Act and to the need for a balancing exercise to be conducted in the context of the common law powers of the police to disclose data (see paragraphs 58-59 above). The ACPO Guidelines set out the “stepping down” policy of limiting access to certain data after a certain time period has elapsed; however, it appears that the “stepping down” policy does not apply to cases concerning requests for criminal record checks (see paragraphs 60 and 89 above). 169. In these circumstances, and having regard in particular to the provisions of the Human Rights Act (see paragraphs 72-76 above) and the Data Protection Act (see paragraphs 65-71 above), the Court is satisfied that the applicant could in theory have sought to commence judicial review proceedings in respect of a decision to retain or disclose her caution data or could have made a complaint to the Information Commissioner, seeking to have the caution data deleted or to prevent its disclosure. In any such proceedings she could have sought to rely on the data protection principles and Article 8 of the Convention. It is therefore necessary to examine whether such proceedings offered reasonable prospects of success. 170. First, as regards retention of criminal record data, no judgment handed down by late 2006 or early 2007 in which individuals sought to challenge retention of criminal record data, and in particular data relating to a caution, relying on the Convention or on the data protection principles has been brought to the attention of the Court. Given the nature of the guidance on retention to which the Court has referred above (see paragraph 167 above) and the generous approach to the powers of the police to retain data set out therein, this is not surprising. The potential for a successful challenge to the exercise of the chief constable’s discretion to retain data, or indeed to the policy itself, was further diminished by the position of the domestic courts at the time, which tended to consider that Article 8 did not apply to mere retention of data or, if it did, that any interference was minor (see the House of Lords’ judgment regarding retention of DNA data which was challenged in S. and Marper, cited above, summarised at §§ 15-25 of that judgment). 171. As regards a challenge to the disclosure of the caution data, the Court observes that in its 2004 judgment in R (X) dealing with disclosure under the 1997 Act of other “information” on an ECRC under the 1997 Act, the Court of Appeal took a robust approach to the exercise of discretion by the chief constable in choosing to disclose information in the context of a criminal record check. Lord Woolf CJ indicated that the chief constable was “under a duty” to disclose any information which might be relevant unless there was some good reason for not making the disclosure (see paragraph 79 above). He further found that the chief constable was not required to invite representations from the subject of the criminal record check before deciding what to include in the certificate (see paragraph 80 above). Specifically on the question of Article 8 considerations, the Court of Appeal expressed the view that it was difficult to see how a chief constable’s decision to disclose could ever be challenged (see paragraph 81 above). The Court observes that the case was decided against the backdrop of a clearly-defined legislative framework (i.e., the 1997 Act, which was in force in England and Wales at the time) which the court took to be in compliance with Article 8 (see paragraph 78 above). However, it considers that the court’s approach to the exercise of discretion is nonetheless indicative of a wide discretion afforded to the police to decide on questions of disclosure and a rejection of any need for the participation of the data subject in the decision to disclose criminal record data. It is also relevant to emphasise that the applicant’s case did not concern disclosure of other information under section 113B(4) but of caution data, the mandatory disclosure of which required by the 1997 Act reveals the view of the legislature that such information will always be relevant. It is significant that the Government have not pointed to any case decided at that time in which an individual had successfully challenged a decision to disclose criminal record data, either concerning convictions and caution data or in respect of section 113B(4) information. Further, no details of any specific guidance setting out the factors which had to be taken into account in making any disclosure decision in the employment context in Northern Ireland at the time have been provided to the Court. 172. Having regard to the continuing nature of the applicant’s complaint about the retention and potential future disclosure of her data (see paragraph 159 above), it is also relevant to examine developments which have occurred since the applicant’s case was lodged. 173. First, as regards retention of criminal record data, in 2009 the Court of Appeal handed down its judgment in the case of Chief Constable of Humberside, which considered whether the Data Protection Act or Article 8 required deletion of old convictions following a decision by the Information Commissioner that it did. While the case was brought by a number of individuals seeking to have their own data deleted, Waller LJ emphasised that the ramifications of the cases were far wider than the cases themselves, since if the convictions at issue were to be deleted and the police were to treat people consistently, the result would be the deletion of around one million convictions (see paragraph 88 above). It follows that the scope of the appeals went beyond the personal interests of the individuals directly involved in the proceedings so that, in that sense, the decision of the Court of Appeal was of more general application and affected others, such as the applicant, in a similar position. 174. Waller LJ considered the argument that there was no statutory obligation on the police to retain data under the Police Act, but noted that “on any view” the Act seemed to recognise that the data would be there to be provided (see paragraph 90 above). He was of the opinion that in assessing whether the data retained were excessive or were being retained for longer than necessary, there was “only one answer” since in order to be able to supply accurate records of convictions, a complete record of conviction, spent or otherwise, was required. This was, he said, a “complete answer to the appeal” (see paragraph 92 above). Even if a narrower approach to police purposes were to be adopted, Waller LJ indicated that the retention of the data would remain lawful because if the police said rationally and reasonably that convictions, however old or minor, had a value in the work they did, then that should be the end of the matter (see paragraph 93 above). As to whether the retention of data violated Article 8 of the Convention, Waller LJ doubted whether Article 8 applied but, even if it did, considered that the retention was in accordance with the law and necessary in a democratic society (see paragraph 96 above). Carnwath LJ also expressed some doubt as to whether Article 8 applied to the recording of a conviction (see paragraph 98 above). 175. It is also of relevance that one of the individuals in that case sought to argue that continued retention of data relating to a reprimand was unfair because she had been assured that it would be removed when she reached the age of eighteen. Waller LJ, with whom Hughes LJ agreed, dismissed this argument, indicating that if it was fair to retain data under the new policy then it did not become unfair simply because the individual had been told what the policy was at the time she was reprimanded. He further referred to the fact that the deletion of her reprimand would lead to the deletion of many others and would therefore be likely to prejudice the prevention and detection of crime and the apprehension and prosecution of offenders (see paragraph 95 above). 176. Following the Court of Appeal’s findings in Chief Constable of Humberside, and the refusal of leave by the Supreme Court (see paragraph 100 above), it is not clear how any proceedings commenced or complaint lodged by the applicant in order to challenge the retention of her caution data could seek to distinguish that case and thus offer her reasonable prospects of success in obtaining deletion of her data. The Government have not specified how she could have done so, nor have they clarified whether, in their view, in the light of that judgment, the judicial review remedy proposed by them offered to the applicant “reasonable prospects of success” in respect of the continued retention of her data. 177. Second, as regards the disclosure of the applicant’s data, the position changed significantly with the entry into force in Northern Ireland of the relevant provisions of the Police Act 1997. While the applicant does not allege that her data have been disclosed pursuant to these provisions, as the Court has noted above her complaint clearly encompasses the continuing threat of disclosure arising from the fact that her data have been retained (see paragraph 159 above). Sections 113A(3) and 113B(3) impose a mandatory obligation to disclose data pertaining to cautions held in central records, including cautions which are spent pursuant to legislation covering rehabilitation of offenders, in both CRCs and ECRCs (see paragraphs 49 and 54 above). Unlike the case of other information included in an ECRC pursuant to section 113B(4) (see paragraph 55 above), there is no discretion afforded to chief constables to choose to omit data pertaining to cautions, and any such data retained in central records must accordingly be disclosed. 178. In these circumstances, the Court is satisfied that a challenge to the disclosure of caution data following the entry into force of the 1997 Act in Northern Ireland would necessarily have to proceed by way of a challenge to sections 113A and 113B themselves. Pursuant to the Human Rights Act, it would be open to the applicant to request that the provisions be interpreted in a manner compatible with the Convention or to seek a declaration of incompatibility pursuant to section 4(2) of Act (see paragraphs 72-73 above). The Government did not comment on whether, in their view, the relevant provisions could be interpreted in a compatible manner. In light of the information before it, and in particular given the clear terms of the legislation, the Court is not persuaded that the possibility of proceedings seeking a compliant interpretation under the Human Rights Act offered reasonable prospects of success. Although a declaration of incompatibility could be sought, there is no obligation following the making of such a declaration for the Government to amend the legislation and no entitlement to damages arises. The Court has therefore previously indicated that a declaration of incompatibility cannot be considered an effective remedy for the purposes of Article 35 § 1 of the Convention (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 43-44, ECHR 2008; and Kennedy, cited above, § 109) and it sees no reason to reach a different conclusion in the present case. 179. Having regard to its review of the case-law above, to the failure of the Government to point to any case where a claim for judicial review of a decision to retain data or a complaint under the Data Protection Act regarding retention was successful, and to the provisions of sections 113A and 113B of the Police Act, the Court is not satisfied that the Government have demonstrated the existence of a remedy apt to afford the applicant redress for her complaints or offering reasonable prospects of success either in 2007, when she lodged her case with this Court, or at the present time. The Government’s objection is accordingly dismissed. 180. The Court 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 1. The parties’ submissions (a) The applicant 181. The applicant argued that retention of the caution data engaged her right to respect for her private life because it had affected her ability to secure employment in her chosen field. 182. Although she accepted that she had disclosed the caution herself, she had done so because she was obliged to and she considered that it was simply not arguable that she could have simply concealed the fact of the caution. 183. She contended that it was necessary to examine the proportionality of the retention of the caution data on the criminal record for a prolonged period. For this purpose, individual circumstances had to be considered. While the applicant accepted that the change in policy was intended to secure the protection of children, the automatic nature of the rule was problematic. In the applicant’s case, the caution related to action taken in the heat of the moment in a family situation with very specific circumstances. There was no suggestion that the applicant represented a general threat to children and the continued retention of her data therefore did not, she contended, pursue the legitimate aim of protecting children. It was clear from the correspondence with the police that the only relevant factor was the code applied to her caution (see paragraph 14 above). She further argued that there was no review process to assess the necessity of continued retention of the caution data. (b) The Government 184. The Government submitted that there was a distinction between the mere retention of data and their subsequent disclosure. They contended that mere retention had no particular effect on an individual or his rights under Article 8, referring to Waller LJ’s comments in Chief Constable of Humberside (see paragraph 97 above). They distinguished the Court’s judgment in S. and Marper on the grounds that the retention of the caution data in the present case did not concern any latent information about an individual of the type that might exist in cellular samples. In their view, retention of criminal record data by the police was an inevitable and commonplace feature of any effective and proper criminal justice system and did not interfere with Article 8 rights in any meaningful way. 185. In any event the Government argued that both retention and disclosure of the caution data complied with Article 8 § 2 of the Convention. As regards retention, the Government emphasised that it occurred in accordance with the law in a number of well-established ways, pursuant to common law powers as police officers and their statutory powers of policing and in accordance with the principles set out in the Data Protection Act. It pursued the legitimate aims of public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. Finally, retention was also necessary and proportionate. Retention was primarily a matter of judgment for the individual police force or Government in question in accordance with the margin of appreciation. However, retention was usually necessary and proportionate as it was important for the police to retain records of what had happened. They referred in this respect to the MOPI Guidance 2006 (see paragraphs 36-41 above). 186. In respect of disclosure, the Government emphasised that in the applicant’s case it took place at her request and with her consent. However, and in any case, they argued that an assessment of the need for disclosure was a matter for the policy judgment of the State in question and fell within the margin of appreciation, regard being had to the objectives of the legislation and the relevance of the information to the employment being sought. An individual dissatisfied with disclosure in her case could challenge it by way of judicial review or pursue a complaint to the Information Commissioner. In the applicant’s case, the disclosure was made in accordance with the law and the applicant does not suggest otherwise. It took place for a legitimate purpose, namely the prevention of disorder and crime and the protection of the rights and freedoms of others. Finally it was both necessary and proportionate to the aim pursued. In this regard it was relevant that the applicant herself requested the disclosure; she was applying for a job working with children and vulnerable adults; she recognised the relevance of the incident to her employment; and the disclosure was factually correct. 2. The Court’s assessment (a) Applicability of Article 8 187. The Court reiterates that both the storing of information relating to an individual’s private life and the release of such information come within the scope of Article 8 § 1 (see Leander, cited above, § 48; Amann v. Switzerland [GC], no. 27798/95, §§ 65 and 69-70, ECHR 2000-II; Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000 ‑ V. See also S. and Marper, cited above, § 67; and Khelili v. Switzerland, no. 16188/07, § 55, 18 October 2011, on the applicability of Article 8 to the storage of data). Even public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities (see Rotaru, cited above, § 43; P.G. and J.H., cited above, § 57; Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 72, ECHR 2006 ‑ VII; and Cemalettin Canlı v. Turkey, no. 22427/04, § 33, 18 November 2008). This is all the more true where the information concerns a person’s distant past ( Rotaru, cited above, § 43; and Cemalettin Canlı, cited above, § 33). The question therefore arises in the present case whether the data relating to the applicant’s caution stored in police records constitute data relating to the applicant’s “private life” and, if so, whether there has been an interference with her right to respect for private life. 188. The Court notes at the outset that the data in question constitute both “personal data” and “sensitive personal data” within the meaning of the Data Protection Act 1998 (see paragraph 67 above). They also constitute “personal data” and are identified as a special category of data under the Council of Europe’s Data Protection Convention (see paragraphs 122-123 above). Further, the data form part of the applicant’s criminal record (see Rotaru, cited above, §§ 43-46; and B.B., cited above, § 57). In this regard the Court, like Lord Hope in R (L), emphasises that although data contained in the criminal record are, in one sense, public information, their systematic storing in central records means that they are available for disclosure long after the event when everyone other than the person concerned is likely to have forgotten about it, and all the more so where, as in the present case, the caution has occurred in private. Thus as the conviction or caution itself recedes into the past, it becomes a part of the person’s private life which must be respected (see Rotaru, cited above, §§ 43-44). In the present case, the administration of the caution occurred almost twelve years ago. 189. The Government referred several times in their written submissions to the fact that the applicant herself disclosed details of the caution to her prospective employer, and that the details she disclosed were merely confirmed by the Criminal Records Office. The Court observes that the posts for which the applicant applied were subject to vetting. In this context she was asked for details of her conviction and caution history and provided them as requested. The Court notes and agrees with the comments of Lords Hope and Neuberger in R (L), to the effect that the fact that disclosure follows upon a request by the data subject or with her consent is no answer to concerns regarding the compatibility of disclosure with Article 8 of the Convention. Individuals have no real choice if an employer in their chosen profession insists, and is entitled to do so, on disclosure: as Lord Hope noted, consent to a request for criminal record data is conditional on the right to respect for private life being respected (see paragraph 106 above). The applicant’s agreement to disclosure does not deprive her of the protection afforded by the Convention (see paragraph 110 above). 190. The Court therefore finds that Article 8 applies in the present case to the retention and disclosure of the caution, and that the retention and disclosure of the data amount to an interference with that Article. (b) Compliance with Article 8 191. In order to be justified under Article 8 § 2 of the Convention, any interference must be in accordance with the law, pursue one of the listed legitimate aims and be necessary in a democratic society. 192. The applicant did not make any submissions as to whether the interference was lawful. The Government contended that the interference was in accordance with the law. 193. The requirement that any interference must be “in accordance with the law” under Article 8 § 2 means that the impugned measure must have some basis in domestic law and be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82; Rotaru, cited above, §§ 52 and 55; Liberty and Others v. the United Kingdom, no. 58243/00, § 59, 1 July 2008; and S. and Marper, cited above, § 95). 194. The Court recalls that in a case concerning covert listening devices, it found a violation of Article 8 because there existed no statutory system to regulate their use and the guidelines applicable at the relevant time were neither legally binding nor directly publicly accessible (see Khan v. the United Kingdom, no. 35394/97, § 27, ECHR 2000 ‑ V). In Malone, cited above, §§ 69-80, it found a violation of Article 8 because the law in England and Wales governing interception of communications for police purposes was “somewhat obscure and open to differing interpretations” and on the evidence before the Court, it could not be said with any reasonable certainty what elements of the powers to intercept were incorporated in legal rules and what elements remained within the discretion of the executive. As a result of the attendant obscurity and uncertainty as to the state of the law the Court concluded that it did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities (see also Liberty and Others, cited above, §§ 64-70). 195. The Court considers it essential, in the context of the recording and communication of criminal record data as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures; as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness (see S. and Marper, cited above, § 99, and the references therein). There are various crucial stages at which data protection issues under Article 8 of the Convention may arise, including during collection, storage, use and communication of data. At each stage, appropriate and adequate safeguards which reflect the principles elaborated in applicable data protection instruments and prevent arbitrary and disproportionate interference with Article 8 rights must be in place. 196. The provisions and principles of the Data Protection Act, the Data Protection Convention and Recommendation No. R (87) 15 are of some importance (see paragraphs 65-71 and 122-141 above). The Court emphasises in particular the terms of Principle 2.1 of the Recommendation, which excludes the open-ended and indiscriminate collection of data except where specific legislation is enacted to authorise such collection (see paragraph 130 above). The Court further draws attention to Principle 5 which sets out the need for a clear legal obligation or authorisation to communicate data to bodies outside the police in most cases, and the exceptional nature of any communication, in the absence of any such obligation or authorisation, intended to prevent serious and imminent danger (see paragraphs 133-135 above). Finally, the Court refers to the terms of Principle 7 of the Recommendation, which sets out a list of considerations to be taken into account when assessing the duration of any storage of data including rehabilitation, spent convictions, the age of the subject and the category of data concerned (see paragraph 138 above). 197. The Court also notes that the Supreme Court in R (F and another) recognised the need for a right to review in respect of the lifelong notification requirements imposed pursuant to sex offenders’ legislation (see paragraph 120 above). In doing so, Lord Phillips noted that no evidence had been placed before the court that demonstrated that it was not possible to identify from among those convicted of serious offences, at any stage in their lives, some at least who posed no significant risk of reoffending. In light of the ensuing uncertainty, he considered that the imposition of notification requirements for life was not proportionate. The Court is of the view that similar considerations apply in the context of a system for retaining and disclosing criminal record information to prospective employers. 198. The Court observes that the recording system in place in Northern Ireland covers not only convictions but includes non-conviction disposals such as cautions, warnings and reprimands. A significant amount of additional data recorded by police forces is also retained. It is clear from the available guidance that both the recording and, at least, the initial retention of all relevant data are intended to be automatic. It further appears from the policy documents provided that a general presumption in favour of retention applies, and that as regards data held in central records which have not been shown to be inaccurate, retention until the data subject has attained one hundred years of age is standard in all cases. There can therefore be no doubt that the scope and application of the system for retention and disclosure is extensive. 199. The Court recognises that there may be a need for a comprehensive record of all cautions, conviction, warnings, reprimands, acquittals and even other information of the nature currently disclosed pursuant to section 113B(4) of the 1997 Act. However, the indiscriminate and open-ended collection of criminal record data is unlikely to comply with the requirements of Article 8 in the absence of clear and detailed statutory regulations clarifying the safeguards applicable and setting out the rules governing, inter alia, the circumstances in which data can be collected, the duration of their storage, the use to which they can be put and the circumstances in which they may be destroyed. 200. Further, the greater the scope of the recording system, and thus the greater the amount and sensitivity of data held and available for disclosure, the more important the content of the safeguards to be applied at the various crucial stages in the subsequent processing of the data. The Court considers that the obligation on the authorities responsible for retaining and disclosing criminal record data to secure respect for private life is particularly important, given the nature of the data held and the potentially devastating consequences of their disclosure. In R (L), Lord Hope noted that in 2008/2009 almost 275,000 requests were made for ECRCs alone (see paragraph 105 above). This number is significant and demonstrates the wide reach of the legislation requiring disclosure. As Lord Neuberger indicated, even where the criminal record certificate records a conviction or caution for a relatively minor, or questionably relevant, offence, a prospective employer may well feel it safer to reject the applicant (see paragraph 108 above; see also the views expressed in the Divisional Court in R (Pinnington), at paragraph 87 above). The Court agrees with Lord Neuberger that it is realistic to assume that, in the majority of cases, an adverse criminal record certificate will represent something close to a “killer blow” to the hopes of a person who aspires to any post which falls within the scope of disclosure requirements (see paragraph 111 above). 201. It is against this backdrop that the lawfulness of the measures for retention and disclosure of criminal record data, and in particular the adequacy of the safeguards in place, must be assessed. 202. The Court reiterates that there is no statutory law in respect of Northern Ireland which governs the collection and storage of data regarding the administration of cautions. Retention of such data is carried out pursuant to the common law powers of the police, in accordance with the general principles set out in the Data Protection Act. In the absence of any statutory provisions, a number of policy documents which apply in Northern Ireland have been identified by the Government (see paragraphs 33-46 above). As noted above, it is clear from the MOPI Guidance and the ACPO Guidelines that the recording and initial retention of caution data are intended in practice to be automatic. While reference is made in the MOPI Guidance to a review of retention after a six-year period, the criteria for review appear to be very restrictive. The Guidance notes that there is a presumption in favour of retention and the review schedule requires police to retain data in the category of “Certain Public Protection Matters” until the data subject is deemed to have reached one hundred years of age, regardless of the type or classification of data or grade of the intelligence concerned (see paragraphs 39-40 above). Any review in such cases seems intended to focus on whether the data are adequate and up to date. Pursuant to the ACPO Guidelines, it appears that data held in central police records are now automatically retained, regardless of the seriousness of the offence in question, until the person is deemed to have reached one hundred years of age. The ACPO Guidelines themselves explain that they are based on a format of restricting access to data, rather than deleting them. While deletion requests can be made under the ACPO Guidelines, they should only be granted in exceptional circumstances (see paragraphs 43-46 above). As noted above the examples given as to what constitute exceptional circumstances do not suggest a possibility of deletion being ordered in any case where the data subject admits having committed an offence and the data are accurate. 203. As for disclosure of caution data, at the relevant time there was no statutory framework in place in Northern Ireland which governed the communication of such data by the police to prospective employers. The disclosure of the applicant’s caution data took place pursuant to the common law powers of the police, in accordance with the general principles set out in the Data Protection Act. The only policy guidance to which the Government have referred is contained in the ACPO Guidelines and the MOPI Guidance. The MOPI Guidance refers to the comprehensive system for disclosure in the employment vetting context set out in the 1997 Act, which did not apply in Northern Ireland at the time, and to general disclosure for police purposes under common law powers (see paragraph 58-59 above). The Guidance explains that in this context a balancing exercise must be carried out, but specific information regarding the scope of the discretion to disclose and the factors which are relevant to the exercise of such powers in the context of disclosure of criminal record information is not provided. Although the ACPO Guidelines make reference to a stepping down policy to limit access to data after a certain time period has passed, as noted above it appears that stepped down data were still intended to be available for disclosure in the context of requests for criminal record checks (see paragraphs 60 and 89 above). 204. Regarding any possible future disclosure of the applicant’s caution data, the Court observes that there is now a statutory framework in place for disclosure of criminal record information to prospective employers. Pursuant to the legislation now in place, caution data contained in central records, including where applicable information on spent cautions, must be disclosed in the context of a standard or enhanced criminal record check. No distinction is made based on the seriousness or the circumstances of the offence, the time which has elapsed since the offence was committed and whether the caution is spent. In short, there appears to be no scope for the exercise of any discretion in the disclosure exercise. Nor, as a consequence of the mandatory nature of the disclosure, is there any provision for the making of prior representations by the data subject to prevent the data being disclosed either generally or in a specific case. The applicable legislation does not allow for any assessment at any stage in the disclosure process of the relevance of conviction or caution data held in central records to the employment sought, or of the extent to which the data subject may be perceived as continuing to pose a risk such that the disclosure of the data to the employer is justified. In this regard the Court takes note of the offer made by the police in 2006 to add a comment to the applicant’s record to the effect that the incident was domestically related and that in any vetting context she should be approached for an explanation (see paragraph 16 above). It is unclear whether such addition could have any place in the disclosure system envisaged by the 1997 Act given the automatic nature of the disclosure exercise in respect of caution data held in central records. In any event, the apparent preference of many employers for a clean criminal record certificate (see paragraphs 87, 108 and 111 above) would deprive such addition of any real value. 205. As regards specifically the fact that the retention policy changed after the administration of the applicant’s caution, the Court notes that the applicant consented to the administration of the caution on the basis that it would be deleted from her record after five years. The Government have confirmed that this was the policy of the PSNI at the relevant time (see paragraph 25 above. See also the 1995 ACPO Code of Practice, paragraph 29 above). The police reply to the applicant’s query in March 2003 is consistent with this understanding and confirmed that the caution would remain on her record until 17 November 2005 (see paragraph 10 above). The Court notes that in accepting the caution, the applicant waived her fair trial rights in respect of the offence in issue. It is not for the Court to assess whether she would, with the benefit of hindsight, have been in a better position now had she refused the caution. It must be recalled that the administration of the caution relieved her of the stress and anxiety of a potential criminal trial, which could have resulted in a custodial sentence had she been found guilty. However, the Court expresses concern about the change in policy, which occurred several years after the applicant had accepted the caution and which was to have significant effects on her employment prospects. 206. In the present case, the Court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the Court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought. 207. The cumulative effect of these shortcomings is that the Court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of Article 8 of the Convention in the present case. This conclusion obviates the need for the Court to determine whether the interference was “necessary in a democratic society” for one of the aims enumerated therein. II. ALLEGED VIOLATION OF ARTICLES 6 AND 7 OF THE CONVENTION 208. The applicant complained under Article 7 of the Convention about the change in policy concerning retention of caution data. The Court of its own motion invited the parties to submit written observations on whether there had been a violation of Article 6 § 1 of the Convention. 209. The Court is prepared to accept that the complaints under Article 6 § 1 and Article 7 are arguable in the particular circumstances of the case and it therefore declares them admissible. However, it satisfied that the substance of the applicant’s complaint concerning the retention and disclosure of her caution data has been addressed in the context of its examination under Article 8 above. It has found a violation of that Article as regards the system for retention and disclosure of caution data. In these circumstances it considers that it is not necessary to examine the complaint under Article 6 and Article 7 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 210. 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.” 211. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. | The Court held that there had been a violation of Article 8 of the Convention. Indeed, as a result of the cumulative effect of the shortcomings identified, it was not satisfied that there were sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life would not be disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly could not be regarded as having been in accordance with the law within the meaning of Article 8. The Court noted in particular that, although data contained in the criminal record were, in one sense, public information, their systematic storing in central records meant that they were available for disclosure long after the event when everyone other than the person concerned was likely to have forgotten about it, especially where, as in the applicant’s case, the caution had occurred in private. Thus, as the conviction or caution itself receded into the past, it became a part of the person’s private life which had to be respected. |
922 | Absence of outside influence | II. THE RELEVANT DOMESTIC LAW AND PRACTICE A. Freedom of the Press Act 14. In Sweden freedom of expression as regards the printed word is regulated by the 1949 Freedom of the Press Act, which has constitutional status. The first such Act dates back to 1766. The jury system was introduced when a revised version of the Act entered into force in 1812. The merits of the system underwent a thorough examination in the course of the revision which led to the 1949 version of the Act. However, the predominant view was that the jury system constituted an important safeguard of press freedom in Sweden and that it should be maintained. For similar reasons, more recent proposals to abolish the jury system have also been resisted. 1. Organisation and jurisdiction of Swedish courts in proceedings relating to the freedom of the press 15. Chapter 12 of the Act contains special provisions governing judicial proceedings instituted to establish civil or criminal liability for prohibited statements in print (section 1). These cases are heard by the District Court within whose jurisdiction the county administration has its seat (Chapter 12, section 1). It sits with three judges and, in proceedings brought under the Act, also with a jury of nine members to examine whether a criminal offence has been committed or whether civil liability has been incurred, unless the parties on both sides declare their willingness to have the issue determined by the court without a jury (sections 2 and 14). In any event, matters such as evidence, sentencing, damages and legal costs are dealt with by the judges alone. In a jury trial the District Court is presided over by a judge. If a jury has given a negative answer to the question whether an offence has been committed or whether civil liability has been incurred, the defendant must be acquitted or the case must be dismissed. If the reply is in the affirmative - and this requires a majority of at least six members - the issue is to be examined also by the judges. Should they disagree with the jury, they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury or, in civil proceedings, dismiss the case (sections 2 and 14). 16. A judgment by the District Court may be appealed against to the Court of Appeal, whose jurisdiction, like that of the District Court, is limited by the terms of the jury ’ s verdict (Chapter 12, section 2). 17. Chapter 1, section 4, provides that any person entrusted with the task of passing judgment on alleged abuses of the freedom of the press must constantly bear in mind the fundamental character of this freedom in a free society; he should attach more attention to whether an expression is illegal by reason of its substance rather than its form and also to its purpose rather than to the manner in which it has been represented; where there is doubt, he should acquit rather than convict. 2. Election of jurors 18. In each county the county council, alone or in some cases together with the municipal council, elects jurors for a term of four years (Chapter 12, section 4). They are divided into two groups, one of sixteen jurors and the other of eight, the latter being composed of persons who hold or have held positions as lay members of the ordinary or administrative courts (section 3). The names of jurors are entered on a list in which each of the two groups are listed separately (section 9). Only Swedish citizens residing in Sweden are eligible for election as jurors. A further condition is that they be known to be independent and fair-minded and to have sound judgment. Different social groups and currents of opinion as well as geographical areas should be represented among the jurors (section 5). In practice, jurors are normally elected from among people who have been politically active. 3. Composition of a jury 19. In proceedings involving a jury, the District Court presents the above-mentioned list of jurors to the parties and queries whether there exist grounds for the disqualification of any of the jurors (Chapter 12, section 10; see also paragraph 21 below). Thereafter, each party is given the opportunity to exclude three jurors in the first group and one from the second. Subsequently, the District Court, by drawing lots, selects the substitute members until there remain six jurors in the first group and three jurors in the second group; these nine jurors become full members of the jury (Chapter 12, section 10). B. Other legislation 20. Chapter 11, section 2, of the Instrument of Government ( regeringsformen ), which forms part of the Swedish Constitution, provides that neither a public authority nor Parliament may determine how a court should adjudicate or apply the law in a particular case. Moreover, all public power must be exercised subject to the law; courts and public authorities shall, in the performance of their functions, ensure the equality of all persons before the law and remain objective and impartial (Chapter 1, sections 1 and 9). These fundamental principles apply also to a jury sitting in a trial under the Freedom of the Press Act. 21. The statutory rules on disqualification of judges extend to jurors (Chapter 12, section 10, of the Freedom of the Press Act). Chapter 4, Article 13, of the Code of Judicial Procedure enumerates a series of specific grounds on which a judge may be disqualified: for instance, where he is a party in the case or otherwise has an interest in its subject-matter or can expect special advantage or damage from its outcome; or where he is related through family or marriage to someone in such a position; or has been involved in the case as judge, or as lawyer or adviser to one of the parties or as witness or expert. Pursuant to the last provision of this Article, paragraph 9, which was the one relied on by the applicant in the domestic proceedings, a judge must be disqualified if some other particular circumstance exists which is likely to undermine confidence in his impartiality in the case. 22. According to section 5 of the 1949 Act containing certain provisions on Proceedings relating to the Freedom of the Press ( lagen 1949:164 med vissa bestämmelser om rättegången i tryckfrihetsmål ) jurors must take the following oath before participating in a trial: "I, N.N., solemnly swear and declare on my faith and honour that, as a member of this jury, I shall to the best of my ability answer the questions put by the court and maintain total secrecy in respect of what has been uttered during the jury ’ s deliberations and how the jurors have voted. This I will and shall faithfully observe as an honest and upright judge." C. Internal rules of political parties imposing duties of allegiance 23. Clause 13 of the SAP ’ s articles of association provides that a member may be excluded if he is disloyal to the Party, disseminates propaganda which is evidently in conflict with its general object and purpose or is otherwise detrimental to its interests. SAP candidates for public office are required to contribute through their office to the implementation of the Party ’ s programme. Other political parties have similar rules. On the other hand, none of the various party rules produced to the Convention institutions contain specific provisions imposing obligations as to the manner in which a member ought to carry out his tasks as a juror. It appears from the legislation summarised in paragraphs 20 to 22 above and the preparatory works to the 1949 Freedom of the Press Act that he is expected to perform this role with the same independence and impartiality as a judge (see Statens offentliga utredningar - "SOU" 1947:60, p. 194). PROCEEDINGS BEFORE THE COMMISSION 24. In his application (no. 14191/88) filed with the Commission on 24 January 1987, Mr Holm alleged that his case against Mr Hansson and Tidens förlag AB was not determined by an independent and impartial tribunal within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. 25. By decision of 9 January 1992, the Commission declared the application admissible. In its report of 13 October 1992 (Article 31) (art. 31), the Commission expressed the opinion, by fourteen votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1). The full text of the Commission ’ s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment. [*] FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 26. At the hearing on 22 June 1993 the Government confirmed the submissions set out in their memorial, in which they asked the Court to hold that there had been no violation of the Convention in the present case. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 27. Mr Carl G. Holm alleged that, owing to the participation of five active SAP members in the jury at the District Court of Stockholm, his case had not been heard by "an independent and impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention, which in so far as relevant, provides: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..." This claim was contested by the Government, but was accepted by the Commission. 28. The Government disputed that the manner of composition of the jury had given rise to a legitimate fear as to its independence and impartiality. In their view, the question had to be examined in the light of Sweden ’ s legal system, its legal traditions and political history. Since 1812 a jury system for freedom-of-the-press cases has existed in Sweden; it had been maintained, despite a number of proposals to Parliament to abolish it, in order to safeguard press freedom from undue State interference, in particular as regards political matters. The jury system was seen as having constituted a crucial factor in the development of democracy in Sweden. In the present case there were admittedly certain links between the five SAP members of the jury and the defendants. However, these were only of a general political nature and ought to be distinguished from those at issue in the case of Langborger v. Sweden. In that case the Court found that a Housing and Tenancy Court had failed to satisfy the requirements of independence and impartiality in Article 6 para. 1 (art. 6-1), mainly because two lay assessors who sat in the proceedings had been nominated by, and had close links with, two associations which both had interests contrary to those of Mr Langborger, a party in the proceedings (judgment of 22 June 1989, Series A no. 155, p. 16, para. 35). Unlike the lay assessors in the latter case, the jurors in Mr Holm ’ s case had no direct interest in the outcome of the case, nor could the SAP be said to have had any such interest. Moreover, it was not contended that the jurors in question had a direct influence on or interest in the defendant company. In fact, the only object of their role was to ensure popular participation in the judicial process. Finally, the Government submitted that decisive importance should not be attached to the fact that under Swedish law the jury had the final say in the event of an acquittal. This rule, although it could be considered to favour the defence in cases such as the present, was consistent with the principle of according the printed word the benefit of the doubt, and hence with the right to freedom of expression as guaranteed by Article 10 (art. 10) of the Convention; indeed it might even go further than the requirements of that Article (art. 10). 29. In the Commission ’ s opinion, the applicant ’ s doubts as to the independence and impartiality of the District Court could, in the specific circumstances of the case, be considered objectively justified. It placed emphasis inter alia on the links between the five SAP jurors and the two defendants in the case and on the political nature of the disputed passages of the book. It further noted the absence in the District Court ’ s judgment of reasoning indicating the objective basis for the acquittal and the lack of a possibility of obtaining an effective review of such a verdict on appeal. 30. In determining whether the District Court could be considered "independent and impartial", the Court will have regard to the principles established in its own case-law (see, for instance, the above-mentioned Langborger judgment, Series A no. 155, p. 16, para. 32; and the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, paras. 27, 28 and 30), which apply to jurors as they do to professional judges and lay judges. Like the Commission, it finds it difficult in this case to examine the issues of independence and impartiality separately (see also the above-mentioned Langborger judgment, ibid.). 31. It is only the independence and the objective impartiality of the five jurors who were affiliated to the SAP which are in issue; the applicant did not contest their subjective impartiality, finding it impracticable to do so in view of the secrecy of each juror ’ s vote (see paragraph 22 above). It is undisputed that the jurors in question were elected in the prescribed manner by the competent elective body, in conformity with the legal conditions for eligibility: namely that the persons concerned be known to be independent and fair-minded and to have sound judgment and also that different social groups and currents of opinion as well as geographical areas be represented among the jurors (see paragraph 18 above). The jury was constituted by the drawing of lots after each party to the proceedings had had an opportunity to express its views on the existence of grounds for disqualification of any of the jurors on the list and to exclude an equal number of jurors (see paragraphs 10, 11 and 21 above). It was also possible for the parties to appeal to the Court of Appeal against decisions by the District Court on requests for disqualification, and the applicant, albeit unsuccessfully, availed himself of this remedy (see paragraph 10 above). Before participating in the trial, each juror had to take an oath to the effect that he or she was to carry out the tasks to the best of his or her abilities and in a judicial manner (see paragraph 22 above). Furthermore, jurors are in several respects viewed under Swedish law as affording the same guarantees of independence and impartiality as judges; in particular, the provisions in the Instrument of Government that aim at safeguarding the independence and impartiality of the judiciary cover juries and the statutory rules on disqualification of judges also extend to jurors (see paragraphs 20-21 above). Accordingly, as indicated by the Commission and the Government, there existed a number of safeguards to ensure the independence and impartiality of the jurors in question. 32. On the other hand, the Delegate of the Commission stressed that under the relevant rules the defence was given the benefit of certain safeguards that were not applicable to the applicant. In this regard, the Court observes the following. Firstly, the defendants could opt for a trial by jury, despite the fact that the applicant did not wish to have one; secondly, an affirmative answer by the jury as to whether the impugned statements in the book constituted an offence required the votes of a special majority of six out of nine jurors (see paragraphs 10 and 15 above). Lastly, the jury had the final say in the event of an acquittal; had the verdict been against the defendants the issue would have been the subject of further review by the District Court judges (see paragraphs 13, 15 and 16 above). It thus appears that the applicant as a private prosecutor was placed in a less favourable position than the defence. However, these features, most of which are typical of a criminal trial involving a jury and which were designed to enhance freedom of the press, do not as such constitute a legitimate reason to fear a lack of independence and impartiality on the part of the jurors. Nevertheless, it is to be noted that there were links between the defendants and the five jurors who had been challenged by the applicant which could give rise to misgivings as to the jurors ’ independence and impartiality. The jurors in question were active members of the SAP who held or had held offices in or on behalf of the SAP (see paragraph 12 above). One of the defendants, the publishing house Tidens förlag AB, had been directly owned by the SAP until 1 January 1985 - the year when the book was published; after that date, it was owned by the SAP indirectly through two companies (see paragraph 8 above). The other defendant, the author, was employed by the publishing house at the time of the book ’ s publication and had served as an ideological adviser to the SAP (see paragraph 8 above). Furthermore, Tidens förlag AB was known for publishing articles portraying opinions shared by the SAP (see paragraph 8 above). The impugned passages of the book were clearly of a political nature and undoubtedly raised matters of concern to the SAP in that they involved criticism of the applicant and Contra, an organisation which had been set up to scrutinise the SAP (see paragraphs 7 and 9 above). 33. Having regard to the foregoing, the Court considers that the independence and impartiality of the District Court were open to doubt and that the applicant ’ s fears in this respect were objectively justified. Moreover, since the Court of Appeal ’ s jurisdiction, like that of the District Court, was limited by the terms of the jury ’ s verdict, the defect in the proceedings before the latter court could not have been cured by an appeal to the former (see paragraphs 13 and 16 above). In sum, there has been a violation of Article 6 para. 1 (art. 6-1) in the particular circumstances of the present case. II. APPLICATION OF ARTICLE 50 (art. 50) 34. Article 50 (art. 50) 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." A. Non-pecuniary damage 35. Under this provision Mr Holm sought 400,000 Swedish kronor for non-pecuniary damage. He submitted that there could be no doubt that he had been under psychological pressure from the book ’ s publication until several years after the domestic proceedings ended. The publication, which was reported in the press, came at a very inconvenient time when he was about to start a new job in a new town. Bringing proceedings against the author and the publishing house had seemed to be the only means of regaining credibility. However, he had had little prospect of success, the jury being composed in the way it was. His failure to win the case had attracted extensive media coverage and had resulted in his encountering great professional difficulties. 36. It is not for the Court to speculate on whether the District Court would have arrived at a conclusion in the applicant ’ s favour had it been composed in a different manner. In any event, the Court agrees with the Government that the finding of a breach of Article 6 para. 1 (art. 6-1) constitutes in itself adequate just satisfaction in this respect. B. Legal costs 37. The applicant also requested reimbursement of 352,500 kronor under the head of lawyer ’ s costs, of which 170,860 were referable to the domestic proceedings and 181,640 to those before the Convention institutions. The Government agreed to pay only costs in respect of the latter, the amount to be assessed on an equitable basis. 38. As to legal costs in the domestic proceedings, the Court is of the view that it is only in so far as they related to his contesting the ability of the SAP members on the list to take part in the trial that they were necessarily incurred in order to avoid the violation found of Article 6 para. 1 (art. 6-1) of the Convention (see paragraphs 10 and 33 above). With regard to the above costs and those referable to the Strasbourg proceedings, the Court, making an assessment on an equitable basis, considers that the applicant is entitled to recover 125,000 kronor, from which 5,650 French francs already received from the Council of Europe by way of legal aid must be deducted. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the independence and impartiality of the District Court had been open to doubt and that the applicant’s fears in this respect had been objectively justified. The Court noted, in particular, that the fact that the defendants had been given benefit of certain safeguards, typical of a criminal trial involving a jury, not available to the applicant as a private prosecutor, had not as such constituted a legitimate reason to fear a lack of independence and impartiality. However, there were links between the defendants and the jurors who had been challenged by the applicant which could give rise to misgivings as to the jurors’ independence and impartiality (one of the defendants, the publishing house, was indirectly owned by SAP, and the other was employed by that company and had been ideological adviser to SAP). Furthermore, the impugned passages of the book were clearly of political nature and undoubtedly raised matters of concern to the SAP. Lastly, since the Court of Appeal’s jurisdiction, like that of the District Court, had been limited by the terms of the jury’s verdict, the defect in the proceedings before the latter court could not have been cured by an appeal to the former. |
660 | Persons arrested or under criminal prosecution | II. RELEVANT DOMESTIC LAW AND PRACTICE 35. Conditions for holding a defendant liable for defamation are 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. 36. For further specific information on the relevant national law, reference is made to paragraphs 41 to 45 and 47 of Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, ECHR 2007 ‑ ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 38. The applicant complained that the unfavourable outcome before the Norwegian courts of his defamation suit against Fædrelandsvennen constituted a failure by the national authorities to protect his right to the presumption of innocence under Article 6 of the Convention, which as far as relevant reads: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. The parties ’ submissions (1) The applicant 39. The applicant emphasised that, despite the utmost importance of not prejudging him, as even pointed out by some of the neighbours in the disputed press coverage, the newspaper had exposed him as the most likely perpetrator of the crime and had thereby subjected him to prejudgment that was particularly damaging to his reputation. 40. He argued that in criminal cases it was for the police, not for the press, to identify possible perpetrators. Only when a person had been formally charged was it permissible for the press to divulge information about suspicion, provided that the information about the charge had been presented correctly. 41. The police had had the situation well under control. They had interviewed the applicant as a matter of routine and had considered him only as a witness. Had the police found a need to warn people in the neighbourhood, they would have done so. In any event, the newspaper was aware of the police ’ s presence in the area. 42. The applicant stressed that publishing suspicion of serious crime might influence a trial court negatively and cause prejudice to judicial independence and the course of justice. As correctly pointed out by the minority of the Supreme Court, it should not be permissible for the press to publicise unfounded suspicion of aggravated crime, like here, against identifiable individuals. (2) The Government 43. The Government disputed the applicant ’ s complaint under Article 6 § 2 of the Convention. They submitted that the outcome of the defamation proceedings before the Norwegian courts did not attract the application of Article 6 § 2 of its own and invited the Court to declare the complaint inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention. 44. In this regard, the Government argued that the right to the presumption of innocence embodied in Article 6 § 2 was a vertical provision protecting a person charged with a criminal offence vis-à -vis the national authorities. Between private parties, an accusation of criminal guilt could raise a legal issue of defamation but not a legal issue under Article 6 § 2. As the Court had stated in Allenet de Ribemont v. France ( 10 February 1995, § 36, Series A no. 308), the presumption of innocence guarantee was reserved for accusation of criminal guilt stemming from “public authorities”. The Government found no basis for the existence of a positive obligation under Article 6 § 2 engaging the responsibility of public authorities for the newspaper ’ s activities. 45. Moreover, as was clear from the newspaper articles, the police did not at the time consider the applicant to be a suspect, but merely a witness. The police had not yet taken any such steps against him during the investigation phase or otherwise made any such indications of incriminating evidence against him as would suffice to consider the applicant as “charged” with a criminal offence within the meaning of Article 6 § 2 (see, inter alia, Serves v. France, 20 October 1997, § 42, Reports of Judgments and Decisions 1997 ‑ VI ). B. The Court ’ s assessment 46. The Court observes that no public authority had “charged [the applicant] with a criminal offence”, in the Banehia case, within the meaning of Article 6 § 2 of the Convention (cf. Allenet de Ribemont, cited above, §§ 34-37; Kyriakides v. Cyprus, no. 39058/05, § 35, 16 October 2008 ). While the information concerning the applicant in relation to the investigation in the Baneheia case had in part been provided by the police, it was the coverage by Fædrelandsvennen on 24 and 25 May 2000, not the statements by the police, which was at the heart of the matter before the national courts. In any event, the disputed newspaper publications did not amount to an affirmation that he was guilty of the crimes in question. In the Court ’ s view, Article 6 § 2 was inapplicable to the matters complained of. Accordingly, this part of the application must be declared inadmissible as being incompatible ratione materiae under Article 35 §§ 3 and 4 with the provisions of the Convention. 47. However, the conclusion above does not prevent the Court from taking into account the interests sought to be protected by Article 6 § 2 in the balancing exercise carried out below (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48. With reference to the same facts as his complaint under Article 6 § 2 of the Convention, the applicant complained of a violation of his right to protection of reputation under Article 8 of the Convention. This article reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 49. The Government disputed the applicant ’ s complaint and requested the Court to declare it inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention. A. Admissibility 50. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further considers 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 stressed that, according to established case-law, the safeguard afforded by Article 10 to journalists was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 102, ECHR 2004 ‑ XI ). Special grounds were required in order to free the media from their general obligation in this respect. Whilst no such grounds existed in the present instance, the newspaper had offered no evidence suggesting that the applicant was guilty and had made no efforts to investigate the matter of its own. The newspaper had erred grossly: A was innocent. Thus the majority of the Supreme Court had failed to apply the correct test. 52. Moreover, the Supreme Court majority had deemed it acceptable that the newspaper invade the applicant ’ s privacy by publicising information about such details as the name of his work place, by publishing a photograph of him, taken from the side, while entering a bus on his way to work and another photo, taken from behind, depicting him walking home at a location close to his home. 53. For the applicant, the consequences of the newspaper report had been enormous. He could not continue in his job and had to move and live in a tent elsewhere, isolated and scared away from society. Whilst there obviously was a pressing social need to protect the applicant ’ s interests the Supreme Court failed to provide such protection and had failed to strike a proper balance between his right to protection of reputation under Article 8 of the Convention and Fædrelandsvennen ’ s freedom of speech under Article 10. 54. The newspaper should obviously have handled the applicant more carefully in its news reporting, considering that he in any event could most probably not have been the perpetrator. The Supreme Court ’ s majority had wrongly applied the Article 10 safeguard in favour of the newspaper in this case. 55. The Government ’ s submission with reference to paragraphs 76, 81 and 83 (quoted at paragraph 32 above) of the Supreme Court ’ s judgment that the latter had relied on the public interest in the publication as a “special grounds” was shallow. It in reality meant that a person who was trampled down or who was most in need of protection by the rule of presumption of innocence should enjoy no effective protection. As pointed out above; when the police had no reason for issuing a warning against the applicant and simply treated him as a witness, it was certainly not for the press to play the role of police. 56. More importantly, the Supreme Court should have considered that the newspaper did not handle adequately the information in the autopsy report which pointed away from the applicant. Whilst having referred to “monstrous sexual offences” in paragraph 82 of its judgment (quoted at paragraph 32 above), the Supreme Court had failed to consider that the applicant had never been involved in such crimes. The newspaper had clearly been negligent. The newspaper ’ s actions and the assessment made thereof by the Supreme Court thereof could not be regarded as complying with journalistic ethical standards laid down in the European Court ’ s case-law. 57. It was incorrect as stated by the Supreme Court in paragraph 83 of its judgment that the newspaper articles had been “balanced”. While it was true that the 24 May 2000 issue had quoted the applicant on top of the front page saying “I am completely innocent”, by publishing this peculiar interview, covering almost the upper half of the front page, the newspaper had actually made things worse. It had contributed to arise more suspicion against the applicant, not less. By describing him in the ensuing text on the front page as the “most interesting” person interviewed by the police, the newspaper in reality did not create a “balance” but rather imbalance to the applicant ’ s detriment. Also, on this point he shared the view held by the Supreme Court minority (in paragraph 95 of the judgment quoted at paragraph 33 above) that the so-called balancing had not improved matters, agreeing with the High Court ’ s findings that the coverage had made the suspicion against him stronger, not weaker. (b) The Government 58. The Government did not dispute that Article 8 was applicable in the present case but maintained that it had not been violated. In their view, the Supreme Court had struck a fair balance when protecting the two values guaranteed by the Convention which could come into conflict with each other in this type of cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to protection of reputation under Article 8. The Government thus concurred with the Supreme Court ’ s finding that the articles in Fædrelandsvennen had not been unlawful for the purposes of Articles 246 and 247 of the Criminal Code and that the applicant ’ s claim for non-pecuniary damages under section 3-6 of the Damage Compensation Act had accordingly been unfounded. 59. The Government further pointed out that in its reasoning dealing with the issue under the Convention, the Supreme Court had rejected the applicant ’ s argument that a shift had taken place in recent Strasbourg case-law, suggesting that the Court had attached greater importance to the protection of reputation in the assessment of whether an interference with freedom of speech was necessary for the purposes of Article 10 § 2 of the Convention. In the Government ’ s opinion, nothing to this effect was to be found in recent jurisprudence. For example, in Pfeifer v. Austria ( no. 12556/03, § 37, ECHR 2007 ‑ ... ), the Court had emphasised that in striking a fair balance between the competing interests, the national authorities enjoyed a certain margin of appreciation. 60. In its application of the principles in the Court ’ s case-law to the concrete circumstances of the case, the Supreme Court held that the impugned newspaper articles had concerned untrue, defamatory statements of fact, as they had left the ordinary reader with the impression that the applicant could be suspected of having committed the murders. On the facts, the Supreme Court noted the great public interest in the investigation of the rapes and murders of the two young girls and that it was clearly a matter of public interest for the readers of a local newspaper such as Fædrelandsvennen that a previously convicted killer, who had been the subject of security measures and who lived in the area, had been summoned by the police for questioning. The Supreme Court, having regard to the various factors stated in paragraphs 81 to 83 of its judgment, was satisfied that the impugned coverage had been presented in good faith with the requisite care and precautionary qualifications and was protected by Article 10 of the Convention. 61. Moreover, the Government, drawing attention to the outcome of a parallel case brought by the applicant against TV2 in respect of its television coverage of the same matter, clearly illustrated that possible suspects in criminal cases with heavy media coverage were not “free game”, but that they - according to circumstances - could attract the protection of Article 8 even in cases of great public interest, where the general public may have a legitimate need for information. The distinction made by the national courts had been based on a thorough and careful review of the facts of each case. 62. In the Government ’ s view, the difference of opinion between the majority and the minority of the Supreme Court in the present instance was one that clearly fell within the national margin of appreciation. 2. Assessment by the Court (a) General principles 63. The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person ’ s “ honour and reputation ”. However, as the Court has stated on previous occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen v. Finland, judgment of 16 December 1997, Reports of judgments and Decisions 1997-VIII, § 63) and can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; for a more detailed summary of the case-law, see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61). 64. In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation (see White v. Sweden, no. 42435/02, § 26, 19 September 2006; and Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007 ‑ ... ) and also honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) as part of the right to respect for private life. In Pfeifer (cited above, § 35), the Court held that a person ’ s reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII). 65. The question is whether the State has achieved a fair balance between the applicant ’ s “right to respect for his private life” under Article 8 and the newspaper ’ s right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer, cited above, § 44; see also Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI, with further references). In examining this question, the Court will have regard to the State ’ s positive obligations under Article 8 of the Convention to protect the privacy of persons targeted in ongoing criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 37 above). It will also have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § § 68-71, ECHR 2004 ‑ XI ). 66. Against this background, bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in assessing the need to protect the applicant ’ s private life under Article 8 as opposed to that of safeguarding the newspaper ’ s freedom of expression under Article 10. (b) Application of these principles 67. From the outset it is to be noted that the applicability of Article 8 to the case was undisputed and the Court sees no reason to hold otherwise. The issue is whether the respondent State had failed to fulfil its positive obligation under this provision to protect the applicant ’ s honour and reputation as part of the right to respect for private life. 68. The Court observes that the disputed articles published by Fædrelandsvennen on 24 and 25 May 2000 were devoted to providing information about the preliminary police investigation into the murders, and in the latter article, also rape, of two young girls aged eight and ten respectively. In the news coverage under consideration, Fædrelandsvennen had stated that the applicant was “probably the most interesting of several convicted persons whose movements the police were now checking”. For the respondent newspaper, journalist and editor neither this statement nor any other elements in the news coverage contained an affirmation of suspicion against the applicant. However, the Supreme Court, agreeing with the High Court, found that the focusing on the applicant as a previously convicted knife killer, his presence in Baneheia when the criminal acts had been committed and the investigation of the applicant, must for an ordinary reader have been perceived as if he could be suspected of having committed the murders in question. 69. The Court sees no reason to disagree with the national courts ’ finding that, for an ordinary reader, this must have been perceived as if the applicant could be a suspect in the case and their finding that the coverage was defamatory of him. In this connection the Court has taken note of the fact that inside the 24 May 2000 issue, a Chief Constable had been quoted as saying that there had been no suspects in the case and that all of the persons who had been summoned for questioning had had formal status as witnesses. Also, both on the front page and inside, it had rendered the applicant ’ s claim of innocence stated in an interview with the newspaper. 70. Although the applicant had not been mentioned by name, the photographs and details of his places of work and residence had made it possible for persons who already knew him to identify him as a possible suspect of aggravated crimes of a particularly reprehensible and also sensitive (cf. White, cited above) character. While the news report consisted of imparting factual information about the investigation that was largely true, the way it was presented wrongly conveyed the impression that there was a factual basis justifying the view that the applicant could be considered a possible suspect. 71. It is obvious that the crimes in question because of their particular nature and gravity were a matter of utmost concern to the national public generally and to the local public especially, as observed by the national courts (see paragraphs 82 of the Supreme Court ’ s judgment quoted at paragraph 32 above). Not only did the press have the task of imparting such information but the public also had a right to receive it. However, the Court does not consider that the serious public interest in the subject matter could constitute such a special ground as to justify the defamatory allegation against the applicant with the consequent harm done to him. 72. The disputed media coverage was conducted in a manner which directly affected the applicant ’ s enjoyment of his right to respect for private live. As observed by the dissenting member of the Supreme Court, the applicant was persecuted by journalists against whom he found it difficult to protect himself. It appears that, in order to obtain his photographs and comments, the journalists followed the applicant in his footsteps inter alia on his way to his home and to his work place. The publications at issue occurred while the applicant, in a phase of rehabilitation and social reintegration after having finished serving a prison sentence and security measures for other and unrelated crimes committed in 1987, had a fixed abode and pursued gainful employment. After the publications he found himself unable to pursue his job and he had to leave his home and was driven into social exclusion. 73. There can be little doubt that the disputed publication entailed a particularly grievous prejudice to the applicant ’ s honour and reputation that was especially harmful to his moral and psychological integrity and to his private life (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media on relation to criminal proceedings quoted at paragraph 37 above). 74. The Court is mindful of the careful and thorough review carried out by the national courts of the various factors that are relevant under the Convention. However, there was not in the Court ’ s view a reasonable relationship of proportionality between the interests relied on by the domestic courts in safeguarding Fædrelandsvennen ’ freedom of expression and those of the applicant in having his honour, reputation and privacy protected. The Court is therefore not satisfied that the national courts struck a fair balance between the newspaper ’ s freedom of expression under Article 10 and the applicant ’ s right to respect for his private life under Article 8, notwithstanding the wide margin of appreciation available to the national authorities. 75. Accordingly, there has been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage, on account of the hardship he had suffered following the news coverage by Fædrelandsvennen. It had delayed his reintegration into society and he had still not fully recuperated. He requested the Court to take into account that as a result of the media stir he had lost his job and had started to live in a tent, being scared away from society. Whilst he had not provided documentary evidence for his monetary losses, he requested that such losses have a bearing on the assessment of the size of the award for non-pecuniary damage. 78. The Government were of the opinion that the amount claimed was excessive. 79. The Court, assisted by the size of the award proposed by the dissenting members of the Supreme Court (see paragraph 101 of the dissenting opinion, quoted at paragraph 33 above) and making an assessment on an equitable basis, awards the applicant EUR 19,000 in respect of non-pecuniary damage. B. Costs and expenses 80. The applicant also claimed (a) NOK 388, 471.61 (NOK 1,180,630.12 less the NOK 792,158.51 granted in free legal aid by the national legal aid authority) for the costs and expenses incurred before the domestic courts. (b) Moreover, he claimed NOK 150,000 (approximately EUR 16,000) (inclusive of value added tax) for legal costs incurred in the Strasbourg proceedings. 81. As to item (a), the Government were of the view that awarding any sums beyond that granted in national legal aid was not warranted in the circumstances. Item (b) appeared excessive in the absence of any further specification. 82. 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 information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 12,500 for the proceedings before the Court. C. Default interest 83. 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, finding that the Norwegian courts had failed to strike a fair balance between the newspaper’s freedom of expression and the applicant’s right to respect for his private life. The Court considered in particular that the news report had wrongly conveyed the idea that there had been facts pointing to the applicant as a suspect. While it had been undisputed that the press had the right to deliver information to the public, and the public had the right to receive such information, these considerations did not justify the defamatory allegations against the applicant and the consequent harm done to him. Indeed, the applicant had been persecuted by journalists in order to obtain his pictures and interviews, and in particular during a period in his life when he had been undergoing rehabilitation and reintegration into society. As a result of the journalistic reports, he had found himself unable to continue his work, had to leave his home and had been driven into social exclusion. The publications in question had therefore gravely damaged the applicant’s reputation and honour and had been especially harmful to his moral and psychological integrity and to his private life. |
586 | Expulsion or extradition cases | RELEVANT LEGAL FRAMEWORK Relevant domestic lawConstitution (with the amendments introduced on 6 December 2015, in force as of 22 December 2015) Constitution (with the amendments introduced on 6 December 2015, in force as of 22 December 2015) Constitution (with the amendments introduced on 6 December 2015, in force as of 22 December 2015) Article 55: Prohibition of expulsion or extradition “1. No one may be expelled or extradited to a foreign State if there is a real danger that the given person may be subjected to the death penalty, torture, inhuman or degrading treatment or punishment in that country. 2. A citizen of the Republic of Armenia may not be extradited to a foreign State, except for the cases provided for by the international treaties ratified by the Republic of Armenia.” Code of Criminal Procedure 60. Article 478.2 § 1 states that individuals who have committed a crime outside the territory of Armenia and have been arrested in the territory of that State can be placed in temporary detention for a maximum of forty days or another time-period as provided in an international treaty with the purpose of receiving an extradition request and verifying the existence of circumstances excluding extradition. 61. Article 478.3 § 5 provides that the person can be detained for the purpose of his or her extradition for a period of two months. Detention for the purpose of extradition cannot exceed eight months. 62. Article 479 § 1 (1) provides that it is the Prosecutor General of Armenia who adopts decisions to grant or refuse extradition requests if the case is at the pre-trial stage. The Prosecutor General’s relevant decision is subject to appeal to the Criminal Court of Appeal within ten days of its receipt while the decisions of the appellate court are subject to appeal to the Court of Cassation within five days of their receipt. The Court of Appeal and the Court of Cassation must examine the case and adopt a decision within five days of the date of receipt of the appeal (Article 479 § 3). If a person’s, including an Armenian citizen’s, extradition is refused, but there are sufficient grounds to prosecute him or her for the offence in relation to which a foreign country requested his or her extradition, the Prosecutor General of Armenia initiates that person’s criminal prosecution (Article 479 § 9). 63. In accordance with Article 488 § 1 (3) an extradition request submitted by the competent authorities of a foreign State must be refused if the request concerns the extradition of an Armenian citizen. Nationality Act (enacted on 6 November 1995) 64. Pursuant to section 10(1), former USSR nationals who permanently reside in the territory of the Republic of Armenia and who did not obtain the nationality of another State before the entry into force of the Constitution (13 July 1995) or who renounced it within a period of one year of the date of the entry into force of the present Act (28 November 1995), are recognised as nationals of the Republic of Armenia. Relevant international law 1993 Minsk Convention 1993 Minsk Convention 1993 Minsk Convention 65. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 – hereinafter “the Minsk Convention”), to which both Armenia and Russia are parties, provides as follows: Article 56. Obligation of extradition “1. The Contracting Parties shall ... at each other’s request, extradite persons who find themselves in their territory for criminal prosecution or to serve a sentence. 2. Extradition for criminal prosecution shall extend to offences which are criminally punishable under the laws of the requesting and requested Contracting Parties, and which entail at least one year’s imprisonment or a heavier sentence.” Article 60. Detention for extradition “Upon receipt of an extradition request, the requested Contracting Party shall immediately take measures to detain the person whose extradition is sought, except in cases where no extradition is possible.” Article 61. Arrest or detention before the receipt of an extradition request “1. The person whose extradition is sought may also be arrested before receipt of an extradition request, if there is a related petition. The petition shall contain a reference to a detention order or a final conviction and shall indicate that an extradition request will follow ...” Article 62. Release of the person arrested or detained “1. A person arrested under Article 61 § 1 ... shall be released ... if no request for extradition is received by the requested Contracting Party within forty days of the arrest ...” European Convention on Extradition 66. The European Convention on Extradition (signed in Paris on 13 December 1957) which entered into force in respect of Armenia on 25 April 2002, provides as follows: Article 1 – Obligation to extradite “The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.” 67. The instrument of ratification deposited by the Armenian Government on 25 January 2002 contained the following reservation: “In respect of Article 1 of the Convention, the Republic of Armenia reserves the right to refuse to grant extradition: ... b. if there are sufficient grounds to suppose that in result of the person’s state of health and age her [or] his extradition will be injurious to her [or] his health or threaten her [or] his life; ...” THE LAW ALLEGED VIOLATION OF ARTICLEs 2 and 3 OF THE CONVENTION 68. The applicant alleged that his extradition to Russia would be contrary to the requirements of Articles 2 and 3 of the Convention, considering the medical evidence in respect of the risks of his transfer. Those Articles provide, in so far as relevant, as follows: Article 2 “1. Everyone’s right to life shall be protected byone 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.” Admissibility 69. In their further observations submitted in reply to the applicant’s observations, the Government argued that the applicant’s representative had used offensive language. In particular, the applicant’s representative had labelled the Government’s observations as “irrelevant”, asserted that the Government were trying to misinterpret the facts and were “in pursuit of covert and unclear goals”, among other things. Furthermore, the observations mentioned that the Government had “overstepped the permissible limits of formal judicial communication and legal ethics” and had “blamed” and “shamed” the applicant. The Government considered this to amount to an abuse of the right of application within the meaning of Article 35 § 3 of the Convention and asked the Court to declare the application inadmissible on those grounds. 70. The Court reiterates that the implementation of Article 35 § 3 (a), which allows it to declare inadmissible any individual application that it considers to be “an abuse of the right of individual application”, is an “exceptional procedural measure” and that the concept of “abuse” refers to its ordinary meaning, namely the harmful exercise of a right by its holder in a manner that is inconsistent with the purpose for which such right is granted (see S.A.S. v. France [GC], no. 43835/11, § 66, ECHR 2014 (extracts), and Miroļubovs and Others v. Latvia, no. 798/05, § 62, 15 September 2009). 71. The use of particularly vexatious, insulting, threatening or provocative language by the applicant – whether this is directed against the respondent State or the Court itself – may be considered an abuse of the right of petition (see Apinis v. Latvia (dec.), no. 46549/06, 20 September 2011, and Miroļubovs and Others v. Latvia, cited above, § 64). At the same time, the applicant’s language must exceed “the bounds of normal, civil and legitimate criticism” in order to be regarded as abusive (see Di Salvo v. Italy (dec.), no. 16098/05, 11 January 2007, and Apinis, cited above). 72. Turning to the present case, the Court observes that in his submissions the applicant’s lawyer justified his impugned statements by the fact that in their previous correspondence as regards the applicant’s request under Rule 39 of the Rules of Court and in their observations on the admissibility and merits of the application the Government had expressed doubts as to whether the applicant had been genuinely in poor health, despite the medical evidence and the authorities’ own refusal to appoint an expert to assess his medical condition (see paragraph 42 above). Furthermore, according to him, the Government had then omitted to disclose such a crucial piece of evidence – unfavourable to them – as the conclusions of the medical panel of 11 February 2019 formed by the Ministry of Health following a request by the Government themselves. It had only been owing to his enquiries that the applicant had found out about the medical conclusion in question and had been able to provide it to the Court. 73. The Court underlines that the only issue it is called to determine in this respect is whether the relevant statements of the applicant’s lawyer went beyond “the bounds of normal, civil and legitimate criticism” as understood in its above-cited case-law. 74. Having regard to the material in its possession and the relevant facts (see paragraphs 56-58 above), the Court considers that the statements at issue were an emotional manifestation of the applicant’s representative’s frustration about the fact that the Government, despite being in possession of a medical opinion directly supporting the applicant’s grievances, had not submitted it in the proceedings before the Court. As to their form, those statements did not contain personal characterisations or offensive language. Although they could be described as being rather sharp and polemical, in the eyes of the Court they were not “insulting or provocative” (see Aleksanyan v. Russia, no. 46468/06, § 118, 22 December 2008; and contrast Di Salvo, cited above, and Řehák v. the Czech Republic (dec.), no. 67208/01). 75. In the light of the foregoing, the Court does not consider that the statements of the applicant’s representative referred to by the Government amounted to an abuse of the right of petition. Accordingly, the Government’s objection must be dismissed. 76. 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 77. The applicant submitted that he had experienced health problems, albeit of lesser seriousness, starting from at least 1994. On 10 June 2015 he had been hospitalised in Moscow with an ischaemic stroke. His condition had subsequently deteriorated because of the mental stress caused by his prosecution. He was under constant medical supervision, undergoing checks and taking medication regularly. 78. The applicant maintained that there was ample medical evidence, including the medical opinion ordered by the Government, that his transfer, if the decision to extradite him were implemented, would expose him to real risk of serious and irreparable harm. In particular, the medical opinion of 11 February 2019 (see paragraph 57 above) provided straightforward and unequivocal answers to the questions raised in his application, rendering the Government’s reliance on the assurances of the Russian authorities meaningless. The applicant argued that those assurances were highly formalistic and superficial considering that the Russian authorities had not been provided with specific information concerning his state of health. 79. In their observations filed on 11 February 2019 the Government submitted that during the examination of the extradition request in respect of the applicant the Office of the Prosecutor General had not been in possession of any medical documents concerning the applicant’s state of health which would have given sufficient basis to conclude that his extradition might pose a risk to his life and health. Furthermore, when arrested in April 2017 the applicant’s health had been satisfactory. He had not complained of health issues during his temporary detention and court hearings and had actively tried to substantiate his Armenian citizenship as the basis for refusal of extradition. The applicant referred to his poor state of health as grounds excluding his transfer only after his application to the Passport and Visa Department of the police with a view to being considered an Armenian national was denied. Hence, some doubts had arisen as to the credibility of the medical documents submitted by the applicant. Nevertheless, after the applicant had relied on his medical condition in July 2017 during the proceedings before the Court of Appeal, the Office of the Prosecutor General had received assurances on the availability of medical care and additional assurances to the effect that the applicant’s transfer would be organised by a special convoy of the Federal Prison Service of Russia which would include a medical practitioner with the relevant specialisation (see paragraphs 26 and 27 above). Most importantly, in a letter of 14 December 2017 the Office of the Prosecutor General of Russia had provided further assurances that the medication and medical equipment required for the treatment of possible cardiovascular problems would be available during the applicant’s transfer. Furthermore, before signing the act of transfer it would be necessary for the accompanying doctor to examine the applicant’s medical records to verify the absence of contraindications for his transfer by air (see paragraph 49 above). The Government submitted that the applicant had not provided any medical evidence which would have addressed the possibility of his transfer in the light of the additional assurances provided by the Russian authorities. They argued that the applicant’s condition was not critical while the decision to extradite would not be final until the accompanying doctor had examined him and confirmed that he was fit to travel. 80. In their further observations filed on 23 August 2019 the Government submitted, inter alia, that the domestic courts had upheld the Prosecutor General’s decision to extradite the applicant without having in their possession an impartial and unbiased medical opinion concerning the potential risks of the applicant’s transfer provided that constant medical supervision was ensured. Instead, the courts had referred to the assurances of the Russian authorities concerning the availability of medical supervision during and after the applicant’s transfer. The Government averred that all the relevant and necessary information concerning the applicant’s state of health had been provided to the Russian authorities and expressed readiness to present relevant documentary proof should the Court consider it necessary. The Court’s assessment (a) General principles 81. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. 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. 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. 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 Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015, with further references). 82. Nevertheless, according to the Court’s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Khlaifia and Others v. Italy [GC], no. 16483/12, § 159, 15 December 2016, and Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000 ‑ XI). In order to determine whether the threshold of severity has been reached, the Court may also take other factors into consideration, in particular: 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; the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions; and whether the victim was in a vulnerable situation (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 117, 25 June 2019). 83. The Court has held that the suffering which flows from naturally occurring illness may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002 ‑ III). 84. It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the individual concerned, if extradited, faces a real risk of being subjected to treatment contrary to Article 3 (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161). 85. In the context of the removal of seriously ill individuals, the Court has held that the authorities of the returning State have an obligation, under Article 3, to protect the integrity of the individuals concerned – an obligation which is fulfilled primarily through appropriate procedures allowing the risks relied upon to be assessed. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the individuals concerned to provide clear proof of their claim that they would be exposed to proscribed treatment. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Paposhvili v. Belgium [GC], no. 41738/10, §§ 185-87, 13 December 2016). 86. The Court has already had occasion to apply the above-mentioned principles in cases concerning the enforcement of removal orders in respect of individuals who could be exposed to risk during transfers. In particular, the Court has found on several occasions that the transfer of an individual suffering from a serious illness would not be in breach of Articles 2 and 3 of the Convention, in so far as it was convinced that in accordance with domestic law and procedure, a removal order would not be implemented unless the individual concerned was found to be medically fit for transfer (see, in particular, Al-Zawatia v. Sweden (dec.), no. 50068/08, § 58, 22 June 2010; Karim v. Sweden, (dec.), no. 24171/05, 4 July 2006; and Imamovic v. Sweden (dec.), no. 57633/10, 13 November 2012). 87. Lastly, in cases of removal of an applicant suffering from an illness, the Court has held that the issue to be assessed is the foreseeable consequences of such a removal for the applicant (see Paposhvili, cited above, § 187). Therefore, in cases where the applicant has not already been removed, the material point in time for the assessment must be that of the Court’s consideration of the case, and the Court may take into account information that has come to light after the final decision by the domestic authorities was taken (see, for example, mutatis mutandis, F.G. v. Sweden [GC], no. 43611/11, § 115, 23 March 2016). (b) Application of the general principles to the present case 88. The Court notes at the outset that the core issue in the present case is whether the transfer (for the purpose of extradition) of the applicant, who is seriously ill, may, in itself, result in a real risk of his being subjected to treatment contrary to Article 3. 89. The case of Imamovic v. Sweden (cited above), the circumstances of which most closely compare to those of the applicant in the present case, concerned the deportation of a Bosnian asylum-seeker who was suffering from rather severe mental and physical health problems. Having regard to the medical evidence indicating that enforcement of the deportation order would put the applicant at risk of suffering a heart attack, the Court found that “there [were] no elements indicating that Sweden [would] enforce the deportation order if the applicant’s overall state of health [was] considered too serious to travel to his home country”. That finding was further supported by the fact that in accordance with the enforcement procedure in Sweden, “the implementation of a deportation order [would] occur only if the authority responsible for the deportation [considered] that the medical condition of the alien so [permitted] and ... the responsible authority [would] ensure that appropriate measures [were] taken with regard to the alien’s particular needs”. 90. In the light of the general principles described earlier (see, in particular, paragraphs 81-84 above) and its findings in the series of Swedish cases mentioned above, the Court considers that the transfer of an individual whose state of health is particularly poor may, in itself, result in the individual concerned facing a real risk of being subjected to treatment contrary to Article 3 (see, mutatis mutandis, Soering, cited above, § 91). 91. That being said, the assessment of the impact of a given transfer on the person concerned must be based on specific medical evidence substantiating the specific medical risks relied upon. This would require a case-by-case assessment of the medical condition of the individual and the specific medical risks in the light of the conditions of that particular transfer. Furthermore, that assessment would need to be made in relation to the medical condition of the person concerned at a particular point in time, considering that the specific risks substantiated at a certain moment could, depending on whether they were of a temporary or permanent nature, be eliminated with the passage of time in view of developments in that person’s state of health. 92. Turning to the present case, the Court notes that the applicant provided detailed medical information obtained from different doctors, including the chief neurologist of Armenia, attesting to severe disorders of cardiovascular and nervous systems and the associated risks if he were to travel. In particular, according to this information, the applicant suffers from the effects of a past stroke, including vestibulopathy, eye ‑ movement impairment, hemiparesis and resultant difficulty walking, atherosclerotic encephalopathy, and arterial hypertension with a risk of developing cardiovascular disease. A further stroke or a heart attack was considered as a possible development should the applicant travel by air or land (see paragraph 26 above). This diagnosis was subsequently confirmed by Dr A.K., the head of the neurological department of a hospital in Yerevan, who stated that the applicant had also developed cephalic disorder accompanied with photophobia and phonophobia and confirmed the potential risks of travel (see paragraph 30 above). Following that, the applicant was hospitalised having been diagnosed with additional conditions, including chronic insufficiency of blood circulation, frequent transient ischaemic attacks and ischaemic heart disease. His unfitness for travel was further confirmed (see paragraphs 31 and 53 above). 93. The Court observes that throughout the domestic proceedings and in the proceedings before the Court the authorities expressed doubts in relation to the applicant’s medical condition and the claimed risks (see, for example, paragraphs 34 and 42 above). Nevertheless, the authorities did not initiate their own assessment of the applicant’s state of health while the applicant’s request seeking the appointment of a forensic medical expert was refused by the Court of Appeal (see paragraph 35 above). Furthermore, neither in the domestic proceedings nor in the proceedings before the Court did the authorities question the reliability of the medical certificates submitted by the applicant or the credibility of the medical professionals who had issued them. While it is true that the applicant did not submit any medical documents concerning the history of his medical condition, such as the results of his past medical examinations and treatment received, if any, in his submission his state of health sharply worsened after 2015 as a result of the anxiety caused by his prosecution. 94. Having regard to the material in its possession and considering that the Government have not submitted any medical evidence rebutting that submitted by the applicant in relation to his state of health, in the Court’s view there are no grounds to doubt the credibility of the medical data provided by the applicant. The Court finds it therefore established that the applicant suffers from serious cardiovascular and neurological disorders with associated conditions as described therein. 95. The Court notes that the Prosecutor General made a decision to grant the request to extradite the applicant on 23 June 2017. Although by then the applicant had already been transferred to the Central Prison Hospital due to the deterioration of his health (see paragraph 21 above), there is nothing to indicate that the Prosecutor General was in possession of any medical documents concerning the applicant’s state of health when taking the decision. 96. Having said that, the Court observes that the applicant submitted relevant medical evidence, in particular the medical certificate issued by head of the Central Prison Hospital on 3 July 2017 and the note issued by the chief neurologist of the Ministry of Health on 12 July 2017 (see paragraphs 23 and 26 above) to the Court of Appeal during the examination of his appeal against the extradition decision. Nevertheless, the Court of Appeal rejected the applicant’s arguments concerning the risks of his transfer with reliance on the assurances provided by the Russian authorities rather than as a result of a careful scrutiny of the applicant’s medical condition and the alleged risks of his transfer (see paragraph 28 above). Notably, as already mentioned above, the Court of Appeal refused to appoint a forensic medical expert to examine the applicant’s state of health during the fresh examination of the applicant’s appeal following the remittal of the case by the Court of Cassation (see paragraph 35 above). 97. In their further observations filed on 23 August 2019, the Government admitted that the domestic courts had upheld the Prosecutor General’s decision to extradite the applicant without having had in their possession an impartial and unbiased medical opinion concerning the potential risks of the applicant’s transfer provided that constant medical supervision was ensured. Instead, the courts had relied on the assurances of the Russian authorities concerning availability of medical supervision during and after the applicant’s transfer (see paragraph 80 above). 98. The Court concludes from the above that, although the applicant had provided objective evidence such as medical certificates showing the particular seriousness of his state of health and the possible significant and irreversible consequences to which his transfer might lead, the courts examining the legality of the decision to extradite him failed to properly assess the risks that such consequences could occur. 99. The Court notes that in their submissions the applicant and the Government referred to and relied on subsequent factual information about the applicant’s medical condition and the risks of its deterioration if he were transferred. Therefore, the Court will proceed with its assessment also in light of the information that was not available when the final decision concerning the applicant’s extradition was taken (see paragraph 87 above). 100. When discharged from the hospital where the applicant had been admitted upon release from detention he was considered to be, inter alia, at high risk, with chronic insufficiency of blood circulation along with frequent transient ischaemic attacks. His not being fit to travel was again confirmed (see paragraph 53 above). 101. The applicant’s unsuitableness for travel was further confirmed by a medical certificate of 11 January 2019 (see paragraph 55 above). 102. Subsequently, a medical panel convened by the Minister of Health was requested to answer specific questions concerning the potential risks to the applicant’s health in the event of his travelling and the possibility of elimination or minimisation of the risks, if any, if the presence of a relevant medical specialist were ensured during the transfer. According to its opinion issued on 11 February 2019, the high risks associated with the applicant’s transfer by air or land were linked to his chronic diseases and their possible unpredictable aggravation whereas the presence of an accompanying doctor could not eliminate those risks since emergency medical care in a specialist medical institution might become necessary should the applicant’s health sharply deteriorate (see paragraphs 56 and 57 above). 103. In reply to the Court’s questions put to the Government during the examination of the applicant’s request for an interim measure, they submitted that according to the established practice a person’s extradition from Armenia was performed only if a medical document proving his or her fitness to be transferred had been issued by the Central Prison Hospital. At the same time, in their observations filed on 11 February 2019 the Government submitted that the decision to extradite the applicant would not be final until the accompanying doctor had examined him and confirmed that he was fit to travel (see paragraph 79 above). Subsequently, in their submissions made after the receipt of the panel’s conclusion of 11 February 2019 (see paragraph 80 above), the Government still referred to the assurances provided by the Office of the Prosecutor General of Russia to argue that the domestic authorities had taken all the necessary measures, considering the information at their disposal, to ensure that the applicant’s transfer would be in line with his state of health. However, given that the assurances provided by the Russian authorities seem to have been limited merely to the availability of medical supervision during the applicant’s transfer (see paragraphs 49 and 80 above), they alone cannot provide a sufficient basis for the Court to conclude that the anticipated conditions of the transfer would remove the existing risk of a significant deterioration in the applicant’s health if his removal from Armenia were to be effected while his state of health was as indicated by the latest information made available to the Court (see paragraphs 57, 58 and 59 above) (see, mutatis mutandis, Tarariyeva v. Russia, no. 4353/03, §§ 112-117, ECHR 2006 ‑ XV (extracts)). 104. As noted above, in several previous cases concerning the enforcement of removal orders in respect of individuals who could be exposed to risk during transfer, the Court underlined the importance of the existence of a relevant domestic legal framework and procedure whereby the implementation of a removal order would depend on the assessment of the medical condition of the individual concerned (see, in particular, Al ‑ Zawatia, cited above, § 58; Karim, cited above; and Imamovic, cited above). 105. The Court observes, however, that no such legal safeguards or procedure have been shown to exist in the present case. Instead, as noted above, the Government initially submitted that it was “established practice” that an extradition decision would be executed upon the condition that the Central Prison Hospital confirmed that the person concerned was medically fit for travel. However, the Government neither referred to any domestic legal provisions to support this submission, nor did they provide any examples to substantiate the existence of such “established practice”. The Government then referred to the fact that the accompanying doctor of the receiving State would need to confirm whether the applicant was fit for travel for the extradition decision to be enforced. Similarly, this submission was not based on any legal regulations but rather on the letter of the Office of the Prosecutor General of Russia dated 14 December 2017 (see paragraph 49 above). 106. The Court is not convinced that such an assessment by the Russian authorities immediately before the transfer, even if carried out, would be capable of adequately addressing the risks to which the applicant could be exposed in the absence of any indication of the extent of such an assessment and – in the absence of any legal regulation of the matter – its effect on the binding nature of the final decision to extradite the applicant (see, mutatis mutandis, Paposhvili, cited above, § 202; and, contrast, Karim, cited above). 107. The Court also notes that the Government’s position with regard to the enforcement of the extradition decision in the light of the conclusion of the medical panel dated 11 February 2019 remains unclear. In particular, although the Government requested the relevant conclusion in order to obtain an “impartial medical evaluation of the potential risks associated with the applicant’s transfer” (see paragraph 54 above), in their further observations they did not specifically elaborate on the findings of the medical panel and, more importantly, on the question of whether or not those findings were to have an impact on their decision to proceed with the applicant’s extradition. 108. In view of the foregoing, the Court finds that, as matters stood at the time when the exchange of the observations between the parties was finalised (see paragraphs 58 and 80 above), there was sufficient information to conclude that, considering the particularly poor state of the applicant’s health, his transfer, even in the presence of an accompanying doctor, would result in a real risk of him being subjected to treatment contrary to Article 3. 109. In reaching this finding, the Court is mindful of the particular context of extradition and the importance of not undermining its foundations (see Soering, cited above, § 89). In particular, the Court has held that the presence of third-party rights requires that in the examination of whether there exists a concrete and individualised risk of ill-treatment, negating the requested State’s ability to surrender a person, the requested State must rely on a solid factual basis to support a finding that the required threshold of risk is met (see Romeo Castaño v. Belgium, no. 8351/17, §§ 85-90, 9 July 2019). 110. It follows that there would be a violation of Article 3 of the Convention if the applicant were to be extradited to Russia without the Armenian authorities having assessed, in accordance with that provision, the risk faced by him during his transfer in the light of the information concerning his state of health. 111. In view of this finding the Court considers that it is not necessary to examine the complaint under Article 2 of the Convention (ibid., § 207). OTHER ALLEGED VIOLATIONS OF THE CONVENTION 112. Lastly, relying on Articles 18, 34 and 38 of the Convention, the applicant complained that the Government had failed to disclose the medical opinion of 11 February 2019. 113. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court 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 the remainder of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. RULE 39 OF THE RULES OF COURT 114. 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. 115. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 41 above) should 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 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.” Damage 117. The applicant claimed 20,000 euros (EUR) in respect of the non ‑ pecuniary damage suffered as a result of the stress and anxiety which aggravated his conditions. 118. The Government were of the view that the claim was exorbitant and that the finding of a breach would amount to sufficient just satisfaction. 119. The Court finds that there is no causal link between the breach of Article 3 relating to the applicant’s potential extradition to Russia and the alleged stress and anxiety suffered by him. Since the Armenian authorities have complied with the interim measure indicated by the Court (see paragraph 41 above) and refrained from enforcing the decision to extradite the applicant until the conclusion of these proceedings, no breach of Article 3 has yet occurred. Hence, the Court’s finding that the implementation of the decision to extradite the applicant to Russia before such time as his condition rendered him fit for transfer would give rise to a breach of that Article amounts to sufficient just satisfaction for the purposes of Article 41 (see, among other authorities, Soering, cited above, § 127, Umirov v. Russia, no. 17455/11, § 160, 18 September 2012 and M.G. v. Bulgaria, no. 59297/12, § 102, 25 March 2014). Costs and expenses 120. The applicant also claimed EUR 8,048 for the costs and expenses incurred before the Court. That amount included EUR 7,490 for the costs of legal representation in the proceedings before the Court and EUR 558 for postal and translation expenses. 121. The Government submitted that the claim for legal fees incurred before the Court was not itemised and that in any event the amounts claimed were excessive while the claim for postal and translation costs was not duly substantiated. 122. 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 and are reasonable as to quantum. 123. The Court observes that the applicant submitted two contracts for provision of legal services concluded with his former and current representatives before the Court, which indicated specific amounts due for each type of work to be carried out. The Court therefore does not accept the Government’s argument that the claims for legal costs were not itemised. On the other hand, the Court considers that not all the legal costs claimed were necessarily and reasonably incurred, including some duplication in the work carried out by the applicant’s two representatives. Furthermore, the Court observes that only part of the claims in respect of postal costs was supported by documentary evidence. 124. In view of the foregoing and regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court. 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. | In November 2017, the Court granted a request by the applicant for an interim measure under Rule 39 of the Rules of Court and, after considering the parties’ submissions on the issue, in February 2018, it decided to maintain the measure. In its judgment, the Court concluded that there would be a violation of Article 3 of the Convention if the applicant was extradited to Russia without the Armenian authorities having assessed the risk faced by him during his transfer in view of the information as to his state of health. |
1,052 | Work during detention | 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 4 (prohibition of forced labour) of the Convention. It found that, having regard to the lack of a European consensus on the issue of the affiliation of working prisoners to the old-age pension system, the practice of the Council of Europe member States did not provide a basis for such an interpretation. The Court further held in this case that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 1 of Protocol no. 1 (protection of property) to the Convention. |
492 | Immigration rules | I. DOMESTIC LAW AND PRACTICE A. History and background 11. The evolution of immigration controls in the United Kingdom has to be seen in the light of the history of the British Empire and the corresponding developments in nationality laws. Originally all persons born within or having a specified connection with the United Kingdom or the dominions owed allegiance to the Crown and were British subjects. A common British nationality was, however, difficult to reconcile with the independence of the self-governing countries of the Commonwealth into which the Empire was transformed. As the various territories concerned became independent, they introduced their own citizenship laws but, for the purposes of United Kingdom law, persons having the citizenship of an independent Commonwealth country retained a special status, known as "British subject" or "Commonwealth citizen" (these terms being synonymous). This status was also held by "citizens of the United Kingdom and Colonies". Prior to 1 January 1983, the latter citizenship was, briefly, acquired by birth within the United Kingdom or one of its remaining dependencies, by descent from a father having that citizenship, by naturalisation or by registration (British Nationality Act 1948). 12. Whereas aliens have been subject to continuing strict immigration controls over a long period, the same is not true of Commonwealth citizens. Until 1962, the latter, irrespective of their local citizenship, all had freedom to enter the United Kingdom for work and permanent residence, without any restriction. A rapid rise in the influx of immigrants, especially in 1960 and 1961, and the consequent danger of the rate of immigration exceeding the country's capacity to absorb them led to a radical change in this situation. The Commonwealth Immigrants Act 1962, and then the Commonwealth Immigrants Act 1968, restricted the right of entry of, and imposed immigration controls on, certain classes of Commonwealth citizens, including citizens of the United Kingdom and Colonies, who did not have close links to Britain. B. The Immigration Act 1971 13. The existing immigration laws were amended and replaced by the Immigration Act 1971 ("the 1971 Act"), which came into force on 1 January 1973. One of its main purposes was to assimilate immigration controls over incoming Commonwealth citizens having no close links to Britain to the corresponding rules for aliens. The Act created two new categories of persons for immigration purposes, namely those having the right of abode in the United Kingdom ("patrials") and those not having that right ("non-patrials"). 14. "Patrials" were to be free from immigration controls. The status of "patrial" was intended to designate Commonwealth citizens who "belonged" to the United Kingdom and, in summary, was conferred (by section 2 of the 1971 Act) on: (a) citizens of the United Kingdom and Colonies who had acquired that citizenship by birth, adoption, naturalisation or registration in the British Islands (that is, the United Kingdom, the Channel Islands and the Isle of Man), or were the children or grandchildren of any such persons; (b) citizens of the United Kingdom and Colonies who had at any time been settled in the British Islands for at least five years; (c) other Commonwealth citizens who were the children of a person having citizenship of the United Kingdom and Colonies by virtue of birth in the British Islands; (d) women, being Commonwealth citizens, who were or had been married to a man falling within any of the preceding categories. 15. Under section 1(2) of the 1971 Act, "non-patrials" (whether Commonwealth citizens or aliens) "may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed" by the Act. Subject to certain exceptions not relevant to the present case, a "non-patrial" shall not enter the United Kingdom unless given leave to do so (section 3(1)). He may be given such leave (or, if he is already in the country, leave to remain) either for a limited or for an indefinite period; in the former case, the leave may be subject to conditions restricting employment or requiring registration with the police or both (ibid.). Where limited leave to enter or remain is granted, it may subsequently be varied, either as regards its duration or the conditions attaching thereto but, if the limit on duration is removed, any conditions attached to the leave cease to apply (section 3(3)). The power to give or refuse leave to enter is exercised by immigration officers but the power to give or vary leave to remain can be exercised only by the Home Secretary (section 4(1)). C. The Immigration Rules 16. Under section 3(2) of the 1971 Act, the Home Secretary is obliged from time to time to lay before Parliament statements of the rules, or of any changes therein, laid down by him as to the practice to be followed in the administration of the Act for regulating entry into and stay in the United Kingdom. These rules contain instructions to immigration officers as to how they shall exercise the statutory discretions given to them by the Act and statements of the manner in which the Home Secretary will exercise his own powers of control after entry. The rules are required to provide for the admission of persons coming for the purpose of taking employment, or for the purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom, but uniform provision does not have to be made for these categories and, in particular, account may be taken of citizenship or nationality (sections 1(4) and 3(2)). Thus, different rules can be and are made for nationals of the member States of the European Economic Community under Community law, and Irish citizens are in a special position. 17. The rules are subject to a negative resolution procedure whereby, if a resolution disapproving the Home Secretary's statement is passed by either House of Parliament within forty days of its being laid, he is required as soon as may be to make such changes as appear to him to be required in the circumstances and to lay the rules as amended before Parliament within forty days of the passing of the resolution (section 3(2)). The statement of rules thus amended is subject to the same procedure as the original statement. Because of the continuous nature of decision-making by immigration officers, the statement originally laid is not abrogated by any negative resolution; it will come into operation when made or on the date therein provided and will remain in force until replaced. 18. The exact legal status of the rules is of some complexity. This question was considered by the Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All England Law Reports 452, when Lord Denning MR said: "[The Home Secretary's rules] are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the [1971 Act]. They can be, and often are, prayed in aid by applicants before the courts in immigration cases. To some extent the courts must have regard to them because there are provisions in the Act itself, particularly in section 19, which show that in appeals to an adjudicator, if the immigration rules have not been complied with, then the appeal is to be allowed. In addition the courts always have regard to those rules, not only in matters where there is a right of appeal; but also in cases under prerogative writs where there is a question whether officers have acted fairly. But they are not rules in the nature of delegated legislation so as to amount to strict rules of law." Lord Justice Geoffrey Lane also doubted whether the rules constituted delegated legislation. He observed: "These rules are very difficult to categorise or classify. They are in a class of their own. They are certainly a practical guide for ... immigration officers .... Indeed they are, as to large parts, ... little more than explanatory notes of the [1971 Act] itself." However, he noted that if Parliament disapproved of the rules, they were not thereby abrogated. Furthermore, at least as far as an adjudicator dealing with appeals was concerned, the rules had the force of law, although it seemed that they could be departed from with the consent of the applicant himself. Lord Justice Cumming-Bruce said: "[The rules] are a totally different kind of publication from the rules that usually come into being under the authority delegated to Ministers under Acts of Parliament; ... they are not in my view in any sense of themselves of legislative force. It is true that ... the rules are given legal effect in the field of the appellate process to the adjudicator or the tribunal .... But the legal effect that the rules have in that limited field flows not from the fact that they have been published by the Minister and laid before Parliament, but because by section 19(2) of the [1971 Act] the rules are given an effect which is in a certain field clearly legally enforceable, and that is a quite different matter." 19. Notwithstanding that an application for entry clearance (see paragraph 22 (b) below) or leave to enter or remain may fall to be refused under the relevant immigration rules, the Home Secretary has a discretion, deriving from historic prerogative powers, to authorise in exceptional circumstances the grant of entry clearance or of leave to enter, or to allow a person to remain in the United Kingdom. Where the applicant is a husband seeking to join or remain with his wife settled in the United Kingdom, factors which the Home Secretary will consider include the extent of her ties with that country and of the hardship she might suffer by going to live abroad, and any recommendations by the immigration appellate authorities (see paragraphs 34-37 below). D. Position at the time of the events giving rise to the present case 1. Introduction 20. The rules in force at the time of the events giving rise to the present case were contained in the "Statement of Changes in Immigration Rules" (HC 394), laid before Parliament on 20 February 1980 ("the 1980 Rules"); they applied to all decisions taken on or after 1 March 1980, except those relating to applications made on or before 14 November 1979. A draft of the rules had previously been included in a White Paper published in November 1979. The 1980 Rules, which in paragraph 2 instructed immigration officers to carry out their duties without regard to the race, colour or religion of the intending entrant, detailed firstly the controls to be exercised on the entry into the United Kingdom of "non-patrials" and then those to be exercised after entry. The former depended on whether the individual concerned was coming for temporary purposes (for example, visitors or students), for employment or business or as a person of independent means, or for settlement. As under the rules previously in force, visitors were normally to be prohibited from taking employment and persons wishing to come for employment were subject to strict regulations as to work permits. The work-permit requirements, however, did not apply to nationals of other member States of the European Economic Community nor to persons covered by the "United Kingdom ancestry rule"; under the latter rule, which had been in force since the 1971 Act came into operation, a Commonwealth citizen having a grandparent born in the British Islands and wishing to take or seek employment in the United Kingdom could obtain indefinite leave to enter even without a work permit. A further exception was to be found in the "working holiday rule", whereby young Commonwealth citizens could, without a permit, take employment incidental to an extended holiday being spent in the United Kingdom; however, the period of their stay could, under the 1980 Rules, not exceed two years. All these exceptions have been maintained in subsequent immigration rules. 21. A particular feature of the changes introduced by the 1980 Rules was the inclusion of a number of provisions directed towards implementing a policy of protecting the domestic labour market at a time of high unemployment by curtailing "primary immigration", that is immigration by someone who could be expected to seek full-time work in order to support a family. In taking these measures, the Government were concerned also to advance public tranquillity and, by exercising firm and fair immigration control, to assist in securing good community relations. To these ends, among the changes effected was the introduction of stricter conditions for the grant of leave to a "non-patrial" husband or fiancé seeking to join or remain with his wife or fiancée settled in the United Kingdom. Previously, any such husband or fiancé would normally have been allowed to settle after a qualifying period, provided that the primary purpose of the marriage was not to obtain settlement in that country. These new measures were not extended to the wives and fiancées of settled men, a fact attributed by the Government to long-standing commitments (based allegedly on humanitarian, social and ethical reasons) to the reunification of the families of male immigrants. Nor did the new measures apply to nationals of other member States of the European Economic Community. 22. The relevant provisions of the 1980 Rules - and of their successors - are summarised below in terms of the following expressions. (a) A person is "settled in the United Kingdom" when he or she is ordinarily resident there without having entered or remained in breach of the immigration laws, and is free from any restriction on the period for which he or she may remain (paragraph 1). (b) An "entry clearance" (paragraphs 10-14) is a document (either a visa, an entry certificate or a Home Office letter of consent, depending on the nationality of the person concerned) which is to be taken by an immigration officer as evidence that the holder, although a "non-patrial", is eligible under the immigration rules for entry to the United Kingdom. It is obtained at British missions abroad or from the Home Office prior to arrival in the United Kingdom. (c) A marriage or intended marriage is "non-qualifying" if there is reason to believe that: - its primary purpose is to obtain admission to or settlement in the United Kingdom; or - the parties do not intend to live together permanently as man and wife; or - the parties have not met (paragraphs 50, 52 and 117). (d) There is "potential evasion of the rules" if there is reason to believe that a husband has remained in the United Kingdom in breach of the immigration rules before the marriage, that the marriage has taken place after a decision or recommendation that he be deported or that the marriage has terminated (paragraph 117). (e) The "financial requirement" is a requirement that varies according to the circumstances of the particular case : basically it means that adequate maintenance and accommodation must be available to the person concerned without the need for recourse to public funds (paragraphs 42, 52 and 55). 2. "Non-patrials" seeking to join a spouse or intended spouse settled in the United Kingdom 23. Where a "non-patrial" whose spouse or intended spouse was "settled in the United Kingdom" came to that country for settlement, he or she would be admitted for that purpose provided that he or she held a current "entry clearance" and unless the circumstances specified in paragraph 13 of the 1980 Rules obtained (for example, false representations, medical grounds, criminal record, exclusion would be conducive to the public good). (a) Where the intending entrant was a husband or fiancé, he could, under paragraphs 50 and 52, obtain an "entry clearance": (i) unless the marriage or intended marriage was "non-qualifying"; (ii) if his wife or fiancée was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and (iii) if, in the cases of fiancés only, the "financial requirement" was satisfied. (b) Where the intending entrant was a wife or fiancée, she could, under paragraphs 42, 43 and 55, obtain an "entry clearance" irrespective of the nationality of her husband or fiancé or of his own or his parents'place of birth. Here, there was no provision as to "non-qualifying" marriages, but the "financial requirement" had generally to be satisfied. (c) Wives admitted under these rules would be given indefinite leave to enter; husbands would be initially admitted for twelve months and fiancés or fiancées for three months, with the possibility, subject to certain safeguards, of applying subsequently to the Home Office for indefinite leave (paragraphs 44, 51, 53, 55, 114 and 116). 3. "Non-patrials" seeking to remain in the United Kingdom with a spouse settled there 24. "Non-patrials" already admitted to the United Kingdom in a temporary capacity who subsequently married a person "settled in the United Kingdom" could also obtain permission to stay. (a) Where the "non-patrial" seeking permission was a man, the basic conditions (paragraph 117) were that: (i) his wife was a citizen of the United Kingdom and Colonies who or one of whose parents had been born in the United Kingdom; and (ii) the marriage was not "non-qualifying" and there was not "potential evasion of the rules". (b) Where the "non-patrial" seeking permission was a woman, she would normally be granted leave to remain on application (paragraph 115). (c) Leave to remain granted under these rules would be, for wives, indefinite and, for husbands, for an initial period of twelve months with the possibility, subject again to the conditions referred to in sub-paragraph (a) (ii) above, of subsequent removal of the time-limit (paragraphs 115 and 117). 4. General considerations regarding leave to remain 25. Decisions on applications for leave to remain were taken in the light of all relevant facts; thus, even where the individual satisfied the formal requirements, permission would normally be refused if the circumstances specified in paragraph 88 of the 1980 Rules obtained (for example, false representations, non-compliance with the time-limit or conditions subject to which he or she had been admitted or given leave to remain, undesirable character, danger to national security). E. Subsequent developments 1. Introduction 26. One result of the 1971 Act was that the right of abode in the United Kingdom became divorced from nationality : thus, a number of citizens of the United Kingdom and Colonies did not have that right (for example, because they had not been born in the British Islands; see paragraph 14 (a) above), whereas it was enjoyed by a number of persons who were not such citizens (for example, Commonwealth citizens having an ancestral link with the United Kingdom; see paragraph 14 (c) above). With a view to bringing citizenship and immigration laws into line, the position was substantially amended by the British Nationality Act 1981, which came into force on 1 January 1983. So far as is relevant for the present purposes, that Act: (a) replaced citizenship of the United Kingdom and Colonies (see paragraph 11 in fine above) with three separate citizenships, "British"," British Dependent Territories" and "British Overseas"; (b) provided, in section 11(1), that on 1 January 1983 "British citizenship" was to be acquired by persons who were then citizens of the United Kingdom and Colonies and had the right of abode in the United Kingdom under the 1971 Act; this category could include a person who was neither born nor had a parent born in the United Kingdom (see paragraph 14 (b) above); (c) laid down detailed provisions on the acquisition of British citizenship by persons born after 1 January 1983; (d) contained, in section 6 and Schedule 1, detailed provisions on naturalisation as a British citizen on the basis of residence in the United Kingdom, the grant of a certificate of naturalisation being at the discretion of the Home Secretary; (e) amended the 1971 Act by providing in section 39 that the right of abode in the United Kingdom - use of the expressions "patrial" and "non-patrial" was abandoned - and the consequential freedom from immigration controls were in future to be enjoyed only by British citizens and by such Commonwealth citizens as on 31 December 1982 had the right of abode under the 1971 Act. 2. The 1982 immigration rules 27. On 6 December 1982, after debates in the House of Commons and the House of Lords, the Home Secretary laid before Parliament a Statement of Changes in Immigration Rules (HC 66; "the 1982 Rules"), intended to harmonise the immigration rules with the British Nationality Act 1981 and expressed to come into force on 1 January 1983. However, on 15 December 1982 the House of Commons passed a resolution disapproving the Statement, some Members finding the changes too lax and others, insufficient. Since by 1 January 1983 no further changes had been laid before Parliament, the 1982 Rules came into force on that date, notwithstanding the negative resolution (see paragraph 17 above). 28. The 1982 Rules made no changes to the regime governing wives and fiancées, described in paragraphs 23-25 above. The regime governing a husband or fiancé was modified in the following main respects. (a) The requirement that, for him to be eligible for leave to enter or remain, his wife or fiancée had to be a citizen of the United Kingdom and Colonies born or having a parent born in the United Kingdom was, under paragraphs 41, 54 and 126, replaced by a requirement that she be a British citizen. The place of her own or her parents'birth ceased to be material since British citizens could include persons without the territorial birth link (for example, a woman born in a former Colony but having the right of abode in the United Kingdom by virtue of long residence there; see paragraphs 14 (b) and 26 (b) above). (b) By virtue of paragraphs 41, 54 and 126, the onus of proof was reversed, so that it became for the man seeking leave to enter or remain to show that the marriage was not "non-qualifying" or, in cases to which paragraph 126 applied, that there was not "potential evasion of the rules". (c) Leave to remain for settlement following marriage, granted to a man admitted in a temporary capacity (cf. paragraph 24 (c) above), would be for an initial period of twelve months, followed by a further period of twelve months and then by the possibility, subject again to the conditions referred to in sub-paragraph (b) above, of subsequent removal of the time-limit (paragraph 126). 29. No provision was made in the 1982 Rules for women settled in the United Kingdom who were not British citizens to be joined by their husbands, although leave could be granted by the Home Secretary in the exercise of his extra-statutory discretion (see paragraph 19 above). These women could also apply for naturalisation as British citizens on the basis of residence, under section 6 of the British Nationality Act 1981 (see paragraph 26 (d) above). 3. The 1983 immigration rules 30. On 9 February 1983, a further Statement of Changes in Immigration Rules (HC 169; "the 1983 Rules") was laid before Parliament. A motion disapproving these rules was defeated in the House of Commons and they came into force on 16 February 1983. 31. The 1983 Rules again did not modify the regime governing wives and fiancées. That governing husbands was amended, so far as is material to the present case, in that, under paragraph 126, the position concerning the length of leave to remain granted to a man already in the United Kingdom reverted to that obtaining under the 1980 Rules (that is, initial leave of twelve months, followed by the possibility of indefinite leave; see paragraph 24 (c) above). This change was coupled with a transitional provision (paragraph 177) concerning men who, whilst the 1982 Rules were in force (see paragraph 28 (c) above), had been granted thereunder an extension of stay for a second period of twelve months: they were entitled to apply immediately for indefinite leave without awaiting the expiry of that period. 32. There was no change in the position concerning women settled in the United Kingdom who were not British citizens, described in paragraph 29 above. F. Sanctions 33. Under sections 3(5)(a), 3(6), 5, 6, 7 and 24(1)(b) of the 1971 Act, a person not having the right of abode in the United Kingdom and having only limited leave to enter or remain in that country who overstays the period of leave or fails to observe a condition attached thereto: (a) commits a criminal offence punishable with a fine of not more than £200 or imprisonment of not more than six months or both, to which penalties the court may, with certain exceptions, add a recommendation for deportation; and (b) is, with certain exceptions, liable to deportation, although he cannot be compelled to leave unless the Home Secretary decides to make a deportation order against him. G. Appeals 34. Appellate authorities in immigration matters were established by the Immigration Appeals Act 1969. They consist of: (a) adjudicators, who sit alone and are appointed by the Home Secretary; (b) the Immigration Appeal Tribunal which sits in divisions of at least three members; the members are appointed by the Lord Chancellor and a certain number must be lawyers. There is no further right of appeal as such to the ordinary courts, but decisions of the appellate authorities are susceptible to judicial review by the High Court on the ground of such matters as error of law or unreasonableness. Judicial review of immigration decisions may also cover questions of an abuse or excess of power by the Home Secretary or whether an immigration officer acted impartially and fairly. 35. Under sections 13, 14 and 15 of the 1971 Act, an appeal may, subject to certain exceptions, be made to an adjudicator against, inter alia: (a) refusal of leave to enter the United Kingdom or of an entry clearance; (b) variation of, or refusal to vary, a limited leave to remain in the United Kingdom; (c) a decision to make a deportation order. An appellant shall not be required to leave the United Kingdom by reason of the expiration of his leave so long as his appeal is pending against a refusal to enlarge or remove the limit on the duration of the leave. However, no appeal lies against refusal of an extension of leave to remain if application therefor was made after expiry of the existing leave. 36. Except as otherwise provided by the 1971 Act, an adjudicator is, under section 19(1), to allow an appeal only if he considers: (a) that the decision or action in question was not in accordance with the law or any immigration rules applicable to the case; or (b) that, where the decision or action involved the exercise of a discretion by the Home Secretary or an officer, that discretion should have been exercised differently. If, however, the decision or action is in accordance with the rules, the adjudicator may not review a refusal by the Home Secretary of a request, by the person concerned, that he should depart from the rules (section 19(2)). Where an appeal is allowed, the adjudicator must give such directions for giving effect to his decision as he thinks requisite and may also make further recommendations; the directions are binding on the Home Secretary except so long as an appeal to the Immigration Appeal Tribunal can be brought or is pending (sections 19(3) and 20(2)). 37. Any party to an appeal to an adjudicator may appeal against his decision to the Immigration Appeal Tribunal, which may affirm that decision or make any other decision which the adjudicator could have made; it also has similar duties and powers in the matter of directions and recommendations. As the law stood at the relevant time, leave to appeal had generally to be obtained; it had to be granted, inter alia, if determination of the appeal turned upon an arguable point of law (section 20(1) of the 1971 Act and Rule 14 of the Immigration Appeals (Procedure) Rules 1972). H. Statistics 38. (a) The Government estimated total immigration into the United Kingdom from the New Commonwealth (that is, the Commonwealth except Australia, Canada and New Zealand ) at 500,000 in the period from 1955 to mid-1962. It was thought that by the latter date some 600 million people had the right of abode (see paragraphs 13-14 above) in the United Kingdom. Between mid-1962 and the end of 1981, a further 900,000 people were estimated to have settled in that country from the New Commonwealth and Pakistan, some 420,000 from non-Commonwealth countries other than Pakistan and some 94,000 from the Old Commonwealth (Australia, Canada and New Zealand); relatively few countries were said to have accounted for most of this immigration. The official estimates for 1981 show that the population of the United Kingdom (53.7 million) included 2.2 million persons of New Commonwealth and Pakistan origin (of whom about 1 million were in the Greater London area ) and 1.2 million other persons not born in the United Kingdom (including those born in the Old Commonwealth but not those born in the Republic of Ireland). It is estimated that the population of New Commonwealth and Pakistan origin could rise to 2.5 million by 1986 and 3 million (5 per cent of the projected total population) by 1991. (b) According to the Government, some 3,500 persons entered the United Kingdom annually under the" United Kingdom ancestry rule" (see paragraph 20 above), but many of them emigrated after a few years. (c) In 1980-1983, there was an average net annual emigration from the United Kingdom of about 44,000, but the population density in 1981 - 229 persons per square kilometer or 355 persons per square kilometer for England alone - was higher than that of any other member State of the European Communities. (d) Statistics supplied by the Government showed that in Great Britain in 1981 90 per cent of all men of working age and 63 per cent of all women of working age were "economically active" (that is, either in employment, or self-employed, or unemployed). The corresponding figures for persons coming from the Indian sub-continent were 86 per cent for men and 41 per cent for women and, for persons coming from the West Indies or Guyana, 90 per cent for men and 70 per cent for women. The statistics also disclosed that a considerably higher proportion of "economically active" women (particularly married women) than men were in part-time employment only - 47 per cent of married women, compared with 2.3 per cent of men. Recent years have seen a high level of unemployment in the United Kingdom. In 1983, 15.3 per cent of "economically active" men and 8.4 per cent of "economically active" women were unemployed, as measured by official figures based on persons claiming unemployment benefit. There was a marked increase between 1980 and 1981, when the figures rose from 7.9 to 12.5 per cent and from 4.3 to 6.4 per cent, respectively. (e) The Government also produced to the Court detailed statistics in support of their claim that the overall effect of the 1980 Rules had been to lead to an annual reduction of up to 5,700 (rather than 2,000, as they had estimated before the Commission) in the number of husbands either accepted for settlement or applying successfully to come for settlement from all parts of the world. They recognised, however, that part - though not a major part - of this figure might represent a decrease attributable to economic conditions. In their submission, this reduction was of a considerable scale when viewed in relation to the figures for the total number of persons accepted for settlement into the United Kingdom. The latter figures (about one-half of which were in each year accounted for by wives and children of men already settled in the country) were: over 80,000 in 1975 and in 1976; around 70,000 in each year from 1977 to 1980; 59,100 in 1981; 53,900 in 1982; and 53,500 in 1983. The number of men accepted for settlement by reason of marriage was 11,190 in 1975; 11,060 in 1976; 5,610 in 1977; 9,330 in 1978; 9,900 in 1979; 9,160 in 1980; 6,690 in 1981; 6,070 in 1982; and 5,210 in 1983. The number of women so accepted was 19,890 in 1977; 18,950 in 1978; 19,780 in 1979; 15,430 in 1980; 16,760 in 1981; 15,490 in 1982; and 16,800 in 1983. The claimed reduction of 5,700 per annum was questioned by the applicants on the following grounds: it was based on a comparison with the figures for 1979, a year in which the number of applications from the Indian sub-continent was artificially high; in order to take account of the delays in processing applications and the twelve-month waiting-period before indefinite leave to remain would be granted, a more meaningful comparison would be between the 1981 and the 1983 figures; no account was taken of the natural decline in applications; and no account was taken of persons properly excluded (for example, on the ground that the marriage was not genuine). PROCEEDINGS BEFORE THE COMMISSION 55. The application of Mrs. Abdulaziz (no. 9214/80) was lodged with the Commission on 11 December 1980 and those of Mrs. Cabales (no. 9473/81) and Mrs. Balkandali (no. 9474/81) on 10 August 1981. Each applicant claimed to be the victim of a practice authorised by Parliament and contained in the 1980 Rules, which practice was incompatible with the Convention, and alleged violations of Article 3 (art. 3), Article 8 (art. 8) (taken alone and in conjunction with Article 14) (art. 14+8)) and Article 13 (art. 13). 56. On 11 May 1982, the Commission declared the three applications admissible and ordered their joinder in pursuance of Rule 29 of its Rules of Procedure. In its report adopted on 12 May 1983 (Article 31) (art. 31), the Commission expressed the opinion: - that there had been a violation of Article 14, in conjunction with Article 8 (art. 14+8), on the ground of sexual discrimination (unanimously); - that there had been no violation of the same Articles (art. 14+8), on the ground of racial discrimination (nine votes to three); - that the original application of the 1980 Rules in the case of Mrs. Balkandali constituted discrimination on the ground of birth, contrary to Article 14 in conjunction with Article 8 (art. 14+8) (eleven votes with one abstention); - that the absence of effective domestic remedies for the applicants'claims under Articles 3, 8 and 14 (art. 3, art. 8, art. 14) constituted a violation of Article 13 (art. 13) (eleven votes to one); - that it was not necessary to pursue a further examination of the matter in the light of Articles 3 and 8 (art. 3, art. 8). The full text of the Commission's opinion and of the dissenting opinion contained in the report is reproduced as an annex to the present judgment. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT AND BY THE APPLICANTS 57. At the hearings on 25 September 1984, the Government submitted that Mrs. Cabales'application was inadmissible ratione materiae. In other respects, they maintained in substance the submissions set out in their memorial of 12 March 1984, whereby they had requested the Court: "(1) With regard to Articles 8 and 14 (art. 8, art. 14) (a) to decide and declare that matters of immigration control lie outside the scope of Article 8 (art. 8), so that no complaints based on the application of immigration control can succeed under Article 8 (art. 8), or under Article 14 taken together with Article 8 (art. 14+8); (b) to decide and declare that upon an examination of the facts of these cases, the matters complained of lie outside the scope of Article 8 (art. 8), with the consequence mentioned above; (c) to decide and declare, if necessary, that any discrimination under Article 14 (art. 14) is objectively and reasonably justified and not disproportionate to the aims of the measures in question; (d) to decide and declare, if necessary, that if there has been any interference with the exercise of rights arising under Article 8 (art. 8) in these applications, it is in accordance with the law and necessary in a democratic society in the interests of the economic well-being of the country, the prevention of disorder, and the protection of the rights and freedoms of others; (2) With regard to Article 3 (art. 3), to decide and declare that the facts of these cases are not capable of amounting, alternatively do not amount, to inhuman or degrading treatment under that Article (art. 3); (3) To decide and declare that Article 13 (art. 13) has no application to these cases, since the complaints fall outside the scope of Articles 3, 8 and 14 (art. 3, art. 8, art. 14); in any event to hold that as regards the immigration rules there is no obligation to provide a domestic remedy under that Article (art. 13); alternatively to hold that insofar as Article 13 (art. 13) does impose, on the facts, any obligation to provide a domestic remedy in relation to any of the matters complained of, that obligation is fulfilled." The applicants, for their part, maintained in substance the submissions set out in their memorial of 30 March 1984, whereby they had requested the Court to decide and declare: "1. that the applicants are victims of a practice in violation of their right to respect for family life, contrary to Article 8 (art. 8) of the Convention; 2. that they are further victims of a practice of discrimination in the securement of their said right (a) in respect of all three applicants, on the grounds of sex and race; and (b) in respect of Mrs. Balkandali, on the ground of birth, contrary to Article 14 in conjunction with Article 8 (art. 14+8) of the Convention; 3. that such discrimination constituted degrading treatment contrary to Article 3 (art. 3) of the Convention; 4. that the absence of effective remedies for the applicants'claims under Articles 3, 8 and 14 (art. 3, art. 8, art. 14) constituted a violation of Article 13 (art. 13) of the Convention; 5. that the United Kingdom Government should pay appropriate compensation, including costs, to the applicants by way of just satisfaction." AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) 58. The applicants claimed to be victims of a practice in violation of their right to respect for family life, guaranteed by 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." A. Applicability of Article 8 (art. 8) 59. The Government's principal submission was that neither Article 8 (art. 8) nor any other Article of the Convention applied to immigration control, for which Protocol No. 4 (P4) was the only appropriate text. In their opinion, the fact that that Protocol (P4) was, as stated in its preamble, designed to afford rights additional to those protected by Section I of the Convention conclusively demonstrated that rights in the field of immigration were not already accorded by the Convention itself, and in particular by Article 8 (art. 8) thereof. Furthermore, the applicants were claiming a right which was not secured to aliens, even by the Protocol (P4), an instrument that in any event had not been ratified by the United Kingdom. The Commission rejected this argument at the admissibility stage. In doing so, it confirmed - and the applicants now relied on - its established case-law: the right of a foreigner to enter or remain in a country was not as such guaranteed by the Convention, but immigration controls had to be exercised consistently with Convention obligations, and the exclusion of a person from a State where members of his family were living might raise an issue under Article 8 (art. 8). 60. The Court is unable to accept the Government's submission. The applicants are not the husbands but the wives, and they are complaining not of being refused leave to enter or remain in the United Kingdom but, as persons lawfully settled in that country, of being deprived (Mrs. Cabales), or threatened with deprivation (Mrs. Abdulaziz and Mrs. Balkandali), of the society of their spouses there. Above all, the Court recalls that the Convention and its Protocols must be read as a whole; consequently a matter dealt with mainly by one of their provisions may also, in some of its aspects, be subject to other provisions thereof (see the "Belgian Linguistic" judgment of 23 July 1968, Series A no. 6, p. 33, para. 7). Thus, although some aspects of the right to enter a country are governed by Protocol No. 4 as regards States bound by that instrument, it is not to be excluded that measures taken in the field of immigration may affect the right to respect for family life under Article 8 (art. 8). The Court accordingly agrees on this point with the Commission. 61. In the alternative, the Government advanced two further arguments to support their contention that Article 8 (art. 8) was not applicable. Firstly, the Article (art. 8) was said to guarantee respect solely for existing family life, whereas here the couples concerned had not, at the time when the request was made for permission for the man to enter or remain in the United Kingdom, established any such life with the legitimate expectation of the enjoyment of it in that country. Secondly, since there was no obstacle to the couples'living together in, respectively, Portugal, the Philippines or Turkey, they were in reality claiming a right to choose their country of residence, something that was not guaranteed by Article 8 (art. 8). These arguments were contested by the applicants. Whilst the Commission did not examine the applications under Article 8 (art. 8) taken alone, it considered that they did not lie outside its scope. 62. The Court recalls that, by guaranteeing the right to respect for family life, Article 8 (art. 8) "presupposes the existence of a family" (see the Marckx judgment of 13 June 1979, Series A no. 31, p. 14, para. 31). However, this does not mean that all intended family life falls entirely outside its ambit. Whatever else the word "family" may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage, such as that contracted by Mr. and Mrs. Abdulaziz and Mr. and Mrs. Balkandali, even if a family life of the kind referred to by the Government has not yet been fully established. Those marriages must be considered sufficient to attract such respect as may be due under Article 8 (art. 8). Furthermore, the expression "family life", in the case of a married couple, normally comprises cohabitation. The latter proposition is reinforced by the existence of Article 12 (art. 12), for it is scarcely conceivable that the right to found a family should not encompass the right to live together. The Court further notes that Mr. and Mrs. Abdulaziz had not only contracted marriage but had also cohabited for a certain period before Mr. Abdulaziz was refused leave to remain in the United Kingdom (see paragraphs 40-41 above). Mr. and Mrs. Balkandali had also cohabited and had a son, although they were not married until after Mr. Balkandali's leave to remain as a student had expired and an extension been refused; their cohabitation was continuing when his application for leave to remain as a husband was rejected (see paragraphs 51-52 above). 63. The case of Mrs. Cabales has to be considered separately, having regard to the question raised as to the validity of her marriage (see paragraph 48 above). The Government argued that, in the circumstances, her application was inadmissible ratione materiae and thus did not have to be examined by the Court. Although this plea was framed in terms of admissibility, the Court is of the opinion that it goes to the merits of the application and is therefore preferably dealt with on that basis (see, mutatis mutandis, the Airey judgment of 9 October 1979, Series A no. 32, p. 10, para. 18). The Court does not consider that it has to resolve the difference of opinion that has arisen concerning the effect of Philippine law. Mr. and Mrs. Cabales had gone through a ceremony of marriage (see paragraph 45 above) and the evidence before the Court confirms that they believed themselves to be married and that they genuinely wished to cohabit and lead a normal family life. And indeed they subsequently did so. In the circumstances, the committed relationship thus established was sufficient to attract the application of Article 8 (art. 8). 64. There remains the Government's argument concerning choice of country of residence. The Court considers that this goes more to the degree of respect for family life which must be afforded and will therefore examine it in that context (see paragraph 68 below). 65. To sum up, each of the applicants had to a sufficient degree entered upon "family" life for the purposes of Article 8 (art. 8); that provision is therefore applicable in the present case. In view of the importance of the issues involved, the Court, unlike the Commission, considers that it has to determine whether there has been a violation of Article 8 (art. 8) taken alone. B. Compliance with Article 8 (art. 8) 66. The applicants contended that respect for family life - which in their cases the United Kingdom had to secure within its own jurisdiction - encompassed the right to establish one's home in the State of one's nationality or lawful residence; subject only to the provisions of paragraph 2 of Article 8 (art. 8-2), the dilemma either of moving abroad or of being separated from one's spouse was inconsistent with this principle. Furthermore, hindrance in fact was just as relevant as hindrance in law: for the couples to live in, respectively, Portugal, the Philippines or Turkey would involve or would have involved them in serious difficulties (see paragraphs 43, 49 and 54 above), although there was no legal impediment to their doing so. 67. The Court recalls that, although the essential object of Article 8 (art. 8) is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31). However, especially as far as those positive obligations are concerned, the notion of "respect" is not clear-cut: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see, amongst other authorities, mutatis mutandis, the above-mentioned "Belgian Linguistic" judgment, Series A no. 6, p. 32, para. 5; the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19, p. 18, para. 39; the above-mentioned Marckx judgment, Series A no. 31, p. 15, para. 31; and the Rasmussen judgment of 28 November 1984, Series A no. 87, p. 15, para. 40). In particular, in the area now under consideration, the extent of a State's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. 68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom, as single persons, that the applicants contracted marriage (see paragraphs 39-40, 44-45 and 50-52 above). The duty imposed by Article 8 (art. 8) cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouses for settlement in that country. In the present case, the applicants have not shown that there were obstacles to establishing family life in their own or their husbands'home countries or that there were special reasons why that could not be expected of them. In addition, at the time of their marriage (i) Mrs. Abdulaziz knew that her husband had been admitted to the United Kingdom for a limited period as a visitor only and that it would be necessary for him to make an application to remain permanently, and she could have known, in the light of draft provisions already published (see paragraph 20 above), that this would probably be refused; (ii) Mrs. Balkandali must have been aware that her husband's leave to remain temporarily as a student had already expired, that his residence in the United Kingdom was therefore unlawful and that under the 1980 Rules, which were then in force, his acceptance for settlement could not be expected. In the case of Mrs. Cabales, who had never cohabited with Mr. Cabales in the United Kingdom, she should have known that he would require leave to enter and that under the rules then in force this would be refused. 69. There was accordingly no "lack of respect" for family life and, hence, no breach of Article 8 (art. 8) taken alone. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 (art. 14+8) A. Introduction 70. The applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and also - in the case of Mrs. Balkandali - birth, they had been victims of a violation of Article 14 of the Convention, taken together with Article 8 (art. 14+8). The former Article (art. 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." In the event that the Court should find Article 8 (art. 8) to be applicable in the present case, the Government denied that there was any difference of treatment on the ground of race and submitted that since the differences of treatment on the ground of sex and of birth had objective and reasonable justifications and were proportionate to the aims pursued, they were compatible with Article 14 (art. 14). 71. According to the Court's established case-law, Article 14 (art. 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 (art. 14) does not necessarily 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, inter alia, the above-mentioned Rasmussen judgment, Series A no. 87, p. 12, para. 29). The Court has found Article 8 (art. 8) to be applicable (see paragraph 65 above). Although the United Kingdom was not obliged to accept Mr. Abdulaziz, Mr. Cabales and Mr. Balkandali for settlement and the Court therefore did not find a violation of Article 8 (art. 8) taken alone (see paragraphs 68-69 above), the facts at issue nevertheless fall within the ambit of that Article (art. 8). In this respect, a parallel may be drawn, mutatis mutandis, with the National Union of Belgian Police case (see the judgment of 27 October 1975, Series A no. 19, p. 20, para. 45). Article 14 (art. 14) also is therefore applicable. 72. For the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised" (see, inter alia, the above-mentioned "Belgian Linguistic" judgment, Series A no. 6, p. 34, para. 10, the above-mentioned Marckx judgment, Series A no. 31, p. 16, para. 33, and the above-mentioned Rasmussen judgment, Series A no. 87, p. 14, para. 38). The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see the above-mentioned Rasmussen judgment, ibid., p. 15, para. 40), but it is for the Court to give the final ruling in this respect. 73. In the particular circumstances of the case, the Court considers that it must examine in turn the three grounds on which it was alleged that a discriminatory difference of treatment was based. B. Alleged discrimination on the ground of sex 74. As regards the alleged discrimination on the ground of sex, it was not disputed that under the 1980 Rules it was easier for a man settled in the United Kingdom than for a woman so settled to obtain permission for his or her non-national spouse to enter or remain in the country for settlement (see paragraphs 23-25 above). Argument centred on the question whether this difference had an objective and reasonable justification. 75. According to the Government, the difference of treatment complained of had the aim of limiting "primary immigration" (see paragraph 21 above) and was justified by the need to protect the domestic labour market at a time of high unemployment. They placed strong reliance on the margin of appreciation enjoyed by the Contracting States in this area and laid particular stress on what they described as a statistical fact: men were more likely to seek work than women, with the result that male immigrants would have a greater impact than female immigrants on the said market. Furthermore, the reduction, attributed by the Government to the 1980 Rules, of approximately 5,700 per annum in the number of husbands accepted for settlement in the United Kingdom (see paragraph 38 (e) above) was claimed to be significant. This was said to be so especially when the reduction was viewed in relation to its cumulative effect over the years and to the total number of acceptances for settlement. This view was contested by the applicants. For them, the Government's plea ignored the modern role of women and the fact that men may be self-employed and also, as was exemplified by the case of Mr. Balkandali (see paragraph 53 above), create rather than seek jobs. Furthermore, the Government's figure of 5,700 was said to be insignificant and, for a number of reasons, in any event unreliable (see paragraph 38 (e) in fine above). 76. The Government further contended that the measures in question were justified by the need to maintain effective immigration control, which benefited settled immigrants as well as the indigenous population. Immigration caused strains on society; the Government's aim was to advance public tranquillity, and a firm and fair control secured good relations between the different communities living in the United Kingdom. To this, the applicants replied that the racial prejudice of the United Kingdom population could not be advanced as a justification for the measures. 77. In its report, the Commission considered that, when seen in the context of the immigration of other groups, annual emigration and unemployment and economic activity rates, the impact on the domestic labour market of an annual reduction of 2,000 (as then estimated by the Government) in the number of husbands accepted for settlement in the United Kingdom (see paragraph 38 (e) above) was not of a size or importance to justify a difference of treatment on the ground of sex and the detrimental consequences thereof on the family life of the women concerned. Furthermore, the long-standing commitment to the reunification of the families of male immigrants, to which the Government had referred as a reason for accepting wives whilst excluding husbands, no longer corresponded to modern requirements as to the equal treatment of the sexes. Neither was it established that race relations or immigration controls were enhanced by the rules: they might create resentment in part of the immigrant population and it had not been shown that it was more difficult to limit abuses by non-national husbands than by other immigrant groups. The Commission unanimously concluded that there had been discrimination on the ground of sex, contrary to Article 14 (art. 14), in securing the applicants'right to respect for family life, the application of the relevant rules being disproportionate to the purported aims. At the hearings before the Court, the Commission's Delegate stated that this conclusion was not affected by the Government's revised figure (about 5,700) for the annual reduction in the number of husbands accepted for settlement. 78. The Court accepts that the 1980 Rules had the aim of protecting the domestic labour market. The fact that, as was suggested by the applicants, this aim might have been further advanced by the abolition of the "United Kingdom ancestry" and the "working holiday" rules (see paragraph 20 above) in no way alters this finding. Neither does the Court perceive any conclusive evidence to contradict it in the Parliamentary debates, on which the applicants also relied. It is true, as they pointed out, that unemployment in the United Kingdom in 1980 was lower than in subsequent years, but it had nevertheless already attained a significant level and there was a considerable increase as compared with previous years (see paragraph 38 (d) above). Whilst the aforesaid aim was without doubt legitimate, this does not in itself establish the legitimacy of the difference made in the 1980 Rules as to the possibility for male and female immigrants settled in the United Kingdom to obtain permission for, on the one hand, their non-national wives or fiancées and, on the other hand, their non-national husbands or fiancés to enter or remain in the country. Although 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 (see the above-mentioned Rasmussen judgment, Series A no. 87, p. 15, para. 40). As to the present matter, it can be said that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe. This means that very weighty reasons would have to be advanced before a difference of treatment on the ground of sex could be regarded as compatible with the Convention. 79. In the Court's opinion, the Government's arguments summarised in paragraph 75 above are not convincing. It may be correct that on average there is a greater percentage of men of working age than of women of working age who are "economically active" (for Great Britain 90 per cent of the men and 63 per cent of the women) and that comparable figures hold good for immigrants (according to the statistics, 86 per cent for men and 41 per cent for women for immigrants from the Indian sub-continent and 90 per cent for men and 70 per cent for women for immigrants from the West Indies and Guyana) (see paragraph 38 (d) above). Nevertheless, this does not show that similar differences in fact exist - or would but for the effect of the 1980 Rules have existed - as regards the respective impact on the United Kingdom labour market of immigrant wives and of immigrant husbands. In this connection, other factors must also be taken into account. Being "economically active" does not always mean that one is seeking to be employed by someone else. Moreover, although a greater number of men than of women may be inclined to seek employment, immigrant husbands were already by far outnumbered, before the introduction of the 1980 Rules, by immigrant wives (see paragraph 38 (e) above), many of whom were also "economically active". Whilst a considerable proportion of those wives, in so far as they were "economically active", were engaged in part-time work, the impact on the domestic labour market of women immigrants as compared with men ought not to be underestimated. In any event, the Court is not convinced that the difference that may nevertheless exist between the respective impact of men and of women on the domestic labour market is sufficiently important to justify the difference of treatment, complained of by the applicants, as to the possibility for a person settled in the United Kingdom to be joined by, as the case may be, his wife or her husband. 80. In this context the Government stressed the importance of the effect on the immigration of husbands of the restrictions contained in the 1980 Rules, which had led, according to their estimate, to an annual reduction of 5,700 (rather than 2,000, as mentioned in the Commission's report) in the number of husbands accepted for settlement. Without expressing a conclusion on the correctness of the figure of 5,700, the Court notes that in point of time the claimed reduction coincided with a significant increase in unemployment in the United Kingdom and that the Government accepted that some part of the reduction was due to economic conditions rather than to the 1980 Rules themselves (see paragraph 38 (d) and (e) above). In any event, for the reasons stated in paragraph 79 above, the reduction achieved does not justify the difference in treatment between men and women. 81. The Court accepts that the 1980 Rules also had, as the Government stated, the aim of advancing public tranquillity. However, it is not persuaded that this aim was served by the distinction drawn in those rules between husbands and wives. 82. There remains a more general argument advanced by the Government, namely that the United Kingdom was not in violation of Article 14 (art. 14) by reason of the fact that it acted more generously in some respects - that is, as regards the admission of non-national wives and fiancées of men settled in the country - than the Convention required. The Court cannot accept this argument. It would point out that Article 14 (art. 14) is concerned with the avoidance of discrimination in the enjoyment of the Convention rights in so far as the requirements of the Convention as to those rights can be complied with in different ways. The notion of discrimination within the meaning of Article 14 (art. 14) includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention. 83. The Court thus concludes that the applicants have been victims of discrimination on the ground of sex, in violation of Article 14 taken together with Article 8 (art. 14+8). C. Alleged discrimination on the ground of race 84. As regards the alleged discrimination on the ground of race, the applicants relied on the opinion of a minority of the Commission. They referred, inter alia, to the whole history of and background to the United Kingdom immigration legislation (see paragraphs 11-15 above) and to the Parliamentary debates on the immigration rules. In contesting this claim, the Government submitted that the 1980 Rules were not racially motivated, their aim being to limit "primary immigration" (see paragraph 21 above). A majority of the Commission concluded that there had been no violation of Article 14 (art. 14) under this head. Most immigration policies - restricting, as they do, free entry - differentiated on the basis of people's nationality, and indirectly their race, ethnic origin and possibly their colour. Whilst a Contracting State could not implement "policies of a purely racist nature", to give preferential treatment to its nationals or to persons from countries with which it had the closest links did not constitute "racial discrimination". The effect in practice of the United Kingdom rules did not mean that they were abhorrent on the grounds of racial discrimination, there being no evidence of an actual difference of treatment on grounds of race. A minority of the Commission, on the other hand, noted that the main effect of the rules was to prevent immigration from the New Commonwealth and Pakistan. This was not coincidental: the legislative history showed that the intention was to "lower the number of coloured immigrants". By their effect and purpose, the rules were indirectly racist and there had thus been a violation of Article 14 (art. 14) under this head in the cases of Mrs. Abdulaziz and Mrs. Cabales. 85. The Court agrees in this respect with the majority of the Commission. The 1980 Rules, which were applicable in general to all "non-patrials" wanting to enter and settle in the United Kingdom, did not contain regulations differentiating between persons or groups on the ground of their race or ethnic origin. The rules included in paragraph 2 a specific instruction to immigration officers to carry out their duties without regard to the race, colour or religion of the intending entrant (see paragraph 20 above), and they were applicable across the board to intending immigrants from all parts of the world, irrespective of their race or origin. As the Court has already accepted, the main and essential purpose of the 1980 Rules was to curtail "primary immigration" in order to protect the labour market at a time of high unemployment. This means that their reinforcement of the restrictions on immigration was grounded not on objections regarding the origin of the non-nationals wanting to enter the country but on the need to stem the flow of immigrants at the relevant time. That the mass immigration against which the rules were directed consisted mainly of would-be immigrants from the New Commonwealth and Pakistan, and that as a result they affected at the material time fewer white people than others, is not a sufficient reason to consider them as racist in character: it is an effect which derives not from the content of the 1980 Rules but from the fact that, among those wishing to immigrate, some ethnic groups outnumbered others. The Court concludes from the foregoing that the 1980 Rules made no distinction on the ground of race and were therefore not discriminatory on that account. This conclusion is not altered by the following two arguments on which the applicants relied. (a) The requirement that the wife or fiancée of the intending entrant be born or have a parent born in the United Kingdom and also the "United Kingdom ancestry rule" (see paragraphs 23, 24 and 20 above) were said to favour persons of a particular ethnic origin. However, the Court regards these provisions as being exceptions designed for the benefit of persons having close links with the United Kingdom, which do not affect the general tenor of the rules. (b) The requirement that the parties to the marriage or intended marriage must have met (see paragraphs 22-24 above) was said to operate to the disadvantage of individuals from the Indian sub-continent, where the practice of arranged marriages is customary. In the Court's view, however, such a requirement cannot be taken as an indication of racial discrimination: its main purpose was to prevent evasion of the rules by means of bogus marriages or engagements. It is, besides, a requirement that has nothing to do with the present cases. 86. The Court accordingly holds that the applicants have not been victims of discrimination on the ground of race. D. Alleged discrimination on the ground of birth 87. Mrs. Balkandali claimed that she had also been the victim of discrimination on the ground of birth, in that, as between women citizens of the United Kingdom and Colonies settled in the United Kingdom, only those born or having a parent born in that country could, under the 1980 Rules, have their non-national husband accepted for settlement there (see paragraphs 23-24 above). It was not disputed that the 1980 Rules established a difference of treatment on the ground of birth, argument being centred on the question whether it had an objective and reasonable justification. In addition to relying on the Commission's report, Mrs. Balkandali submitted that the elimination of this distinction from subsequent immigration rules (see paragraph 28 (a) above) demonstrated that it was not previously justified. The Government maintained that the difference in question was justified by the concern to avoid the hardship which women having close ties to the United Kingdom would encounter if, on marriage, they were obliged to move abroad in order to remain with their husbands. The Commission considered that, notwithstanding the subsequent elimination of this difference, the general interest and the possibly temporary nature of immigration rules required it to express an opinion. It took the view that a difference of treatment based on the mere accident of birth, without regard to the individual's personal circumstances or merits, constituted discrimination in violation of Article 14 (art. 14). 88. The Court is unable to share the Commission's opinion. The aim cited by the Government is unquestionably legitimate, for the purposes of Article 14 (art. 14). It is true that a person who, like Mrs. Balkandali, has been settled in a country for several years may also have formed close ties with it, even if he or she was not born there. Nevertheless, there are in general persuasive social reasons for giving special treatment to those whose link with a country stems from birth within it. The difference of treatment must therefore be regarded as having had an objective and reasonable justification and, in particular, its results have not been shown to transgress the principle of proportionality. This conclusion is not altered by the fact that the immigration rules were subsequently amended on this point. 89. The Court thus holds that Mrs. Balkandali was not the victim of discrimination on the ground of birth. III. ALLEGED VIOLATION OF ARTICLE 3 (art. 3) 90. The applicants claimed to have been subjected to degrading treatment, in violation of Article 3 (art. 3), which reads: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." In their view, the discrimination against them constituted an affront to human dignity. They also referred to Mr. and Mrs. Cabales'lengthy separation and to the anxiety and stress undergone by Mrs. Abdulaziz and Mrs. Balkandali. The Government contested this claim on various grounds. According to the Commission, Article 14 (art. 14) incorporated a condemnation of the degrading aspects of sexual and other forms of discrimination and no separate issues arose under Article 3 (art. 3). 91. The Court observes that the difference of treatment complained of did not denote any contempt or lack of respect for the personality of the applicants and that it was not designed to, and did not, humiliate or debase but was intended solely to achieve the aims referred to in paragraphs 75, 76, 78 and 81 above (see the Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p. 13, para. 22). It cannot therefore be regarded as "degrading". There was accordingly no violation of Article 3 (art. 3). IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 92. The applicants alleged that they had had no effective remedy for their complaints under Articles 3, 8 and 14 (art. 3, art. 8, art. 14) and that there had accordingly been a breach of Article 13 (art. 13), which 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." In the event that the Court should find Articles 3, 8 and 14 (art. 3, art. 8, art. 14) to be applicable, the Government contended that the immigration rules, though not constituting delegated legislation, fell within the principle enunciated by the Commission in its report in the case of Young, James and Webster (Series B no. 39, p. 49), namely that Article 13 (art. 13) does not require that a remedy be provided for controlling the conformity of a law with the Convention. In the alternative, they submitted that the remedies that were available to the applicants were "effective". The Commission considered that the immigration rules fell outside the aforementioned principle. Having reviewed the available channels of complaint, it concluded that there had been a violation of Article 13 (art. 13). 93. The Court has found that the discrimination on the ground of sex of which Mrs. Abdulaziz, Mrs. Cabales and Mrs. Balkandali were victims was the result of norms that were in this respect incompatible with the Convention. In this regard, since the United Kingdom has not incorporated the Convention into its domestic law, there could be no "effective remedy" as required by Article 13 (art. 13) (see the Silver and Others judgment of 25 March 1983, Series A no. 61, pp. 42-44, paras. 111-119, and the Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 52, para. 127). Recourse to the available channels of complaint (the immigration appeals system, representations to the Home Secretary, application for judicial review; see paragraphs 19 and 34-37 above) could have been effective only if the complainant alleged that the discrimination resulted from a misapplication of the 1980 Rules. Yet here no such allegation was made nor was it suggested that that discrimination in any other way contravened domestic law. The Court accordingly concludes that there has been a violation of Article 13 (art. 13). V. APPLICATION OF ARTICLE 50 (art. 50) 94. Mrs. Abdulaziz, Mrs. Cabales and Mrs. Balkandali claimed, for "moral damage" and costs and expenses, just satisfaction under Article 50 (art. 50), which 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." All the applicants, including Mrs. Cabales, have been victims of a breach of Article 14 taken in conjunction with Article 8 (art. 14+8) (see paragraphs 63 and 83 above), with the result that Article 50 (art. 50) is applicable as regards each of them. A. Damage 95. The applicants sought "substantial", but unquantified, compensation for non-pecuniary damage in the form of distress, humiliation and anxiety. They stated that the interference complained of concerned a vital element in society, namely family life; that sexual discrimination was universally condemned; and that the existence of a practice in breach of the Convention was an aggravating factor. They also cited, inter alia, the adverse effects on the development of family ties and on the making of long-term plans; the threat of criminal or deportation proceedings against Mr. Abdulaziz and Mr. Balkandali (see paragraph 33 above); the lengthy separation of Mr. and Mrs. Cabales; and the fact that Mr. Abdulaziz would have been accepted for settlement in the United Kingdom under the rules in force at the dates of his marriage and of his application for leave to remain (see paragraph 41 above). Mrs. Balkandali added that the subsequent grant to her husband of leave to remain (see paragraph 53 above) had afforded no reparation for her previous distress. The Government contended firstly that an award of just satisfaction to Mrs. Abdulaziz and Mrs. Balkandali was not "necessary": there was no evidence of the alleged damage nor had it been proved that any damage was the result of the violations that might be found by the Court. In the alternative, they submitted that a finding of violation would of itself constitute sufficient just satisfaction: at the time of their marriage, the couples concerned knew that they were not entitled to live together in the United Kingdom; in fact, they had not been prevented from doing so; and since they could have lived in Portugal or Turkey, family ties and long-term plans had not been adversely affected. Similar pleas were advanced concerning Mrs. Cabales. 96. By reason of its very nature, non-pecuniary damage of the kind alleged cannot always be the object of concrete proof. However, it is reasonable to assume that persons who, like the applicants, find themselves faced with problems relating to the continuation or inception of their married life may suffer distress and anxiety. Nevertheless, having regard in particular to the factors relied on by the Government in their alternative submission, the Court considers that in the circumstances of these cases its findings of violation of themselves constitute sufficient just satisfaction. The applicants'claim for monetary compensation cannot therefore be accepted. B. Costs and expenses 97. The applicants claimed in respect of their costs and expenses referable to the proceedings before the Convention institutions - subject to deduction of the amounts they had received by way of legal aid and of a donation of £342.83 - the following sums (exclusive of any value added tax): (a) £14,955.61 for the fees and disbursements of Messrs. Bindman & Partners, solicitors; (b) £8,745 for the fees of Mr. Michael Beloff, Q.C.; (c) £5,411 for the fees of junior counsel (Mrs. Dangor up to March 1984 and Prof. Higgins thereafter); (d) U.S.$ 120.75, being the one-half not reimbursed out of the Court's legal aid fund of fees paid to Messrs. Sycip, Salazar, Feliciano & Hernandez for advice on Philippine law relative to Mrs. Cabales'marriage. 98. The Government indicated that they were prepared to pay such amounts as were in accordance with the Court's practice in the matter and were not covered by the applicants'legal aid. With the exception of the points mentioned in the following paragraph, the Government did not assert that the claim failed to satisfy the Court's criteria in the matter (see, amongst many other authorities, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 14, para. 36); in particular, they did not contest that the applicants had incurred liability for costs additional to those covered by their legal aid (cf., inter alia, the Airey judgment of 6 February 1981, Series A no. 41, p. 9, para. 13). Subject to an examination of those points, the Court therefore retains the whole of the claim. 99. (a) The Government observed that the fees claimed in respect of junior counsel were, as compared with those claimed for leading counsel, higher than would, by convention, be paid in domestic litigation. The applicants disputed the existence of an inflexible rule in this respect. The Court recalls that, in any event, it is not bound by the rules of domestic practice in this area (see the Silver and Others judgment of 24 October 1983, Series A no. 67, p. 10, para. 20). It finds, having regard to the circumstances and complexity of the case, that the fees in question are reasonable as to quantum. (b) The Government contended that, unless the person who consulted Messrs. Sycip, Salazar, Feliciano & Hernandez had been acting as agent for Messrs. Bindman & Partners, there should be an appropriate deduction as regards the former firm's fees. Mrs. Cabales replied that that person had been so acting and that the latter firm had paid the fees. The Court notes that the account in question was, in fact, addressed to Messrs. Bindman & Partners. 100. The costs and expenses accepted by the Court total U.S.$ 120.75 and, after subtracting the donation of £342.83, £28,768.78. From the latter amount has to be deducted the sum of 9,650 FF received by the applicants from the Commission and the Court by way of legal aid; the resulting figure is to be increased by any value added tax that may be due. | The Court held that the applicants had not been victims of discrimination on the ground of race. It found, however, that they had been victims of discrimination on the ground of sex (difference in treatment between male and female immigrants as regards permission for their non-national spouse to enter or remain in the country), in violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the Convention. |
239 | The definition of idem | II. RELEVANT DOMESTIC LAW AND PRACTICE 16. Section 3(1)(2) of the Public Order Act 2000 ( Zakon o javnom redu i miru Zeničko-dobojskog kantona, Official Gazette of the Zenica-Doboj Canton nos. 8/00, 15/03, 11/07 and 8/08) provides that anyone who disturbs the peace in a public place by participating in a fight, or by verbally or physically attacking another person, is committing a minor offence against public order (affray). Under section 6(1) affray attracted a fine of BAM 200 - 500 or imprisonment for a period not exceeding sixty days. As of 15 July 2007, affray attracts a fine only of BAM 200 - 500. 17. Article 48 § 2 of the Criminal Code 1998 ( Krivični zakon Federacije Bosne i Hercegovine, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 43/98, 2/99, 15/99, 29/00 and 59/02), which was in force until 1 August 2003, provided, inter alia, that a fine imposed for a minor offence would be deducted from a sentence imposed in the criminal proceedings (BAM 50 equals 1 day in prison) if the criminal offence contained the same elements as the minor offence. Article 177 § 1 of the Code provided that anyone who inflicted grievous bodily harm on another or impaired another ’ s health would be sentenced to imprisonment for a term of no less than six months and not exceeding five years. If that act was committed against a parent of a common child, it was punishable by a term of imprisonment of no less than one year and not exceeding five years (Article 177 § 2). The competent court could impose a sanction below the prescribed minimum in the event that there were mitigating circumstances (Article 41 § 2 ). 18. On 30 March 2012, the Constitutional Court, sitting in a plenary session, found a violation of the ne bis in idem principle in a case almost identical to the present one (see decisions no. AP 133/09 ). In its reasoning the court directly relied on this Court ’ s case-law established in Sergey Zolotukhin v. Russia ( [GC], no. 14939/03, ECHR 2009) and Maresti v. Croatia (no. 55759/07, 25 June 2009). THE LAW I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION 19. The applicant complained that he had been tried and punished twice for the same offence in respect of an incident that had occurred at about 6.40 p.m. on 12 February 2003 in the flat of his former wife. He relied on Article 4 of Protocol No. 7 to the Convention, which reads as follows: “1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3. No derogation from this Article shall be made under Article 15 of the Convention.” 20. The Government contested that argument. A. Admissibility 21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 22. The applicant argued that in both the minor-offences proceedings and the criminal proceedings he had been found guilty in respect of the same incident and the same facts and that, irrespective of the different classification of the two offences under domestic law, this had violated his right not to be tried and punished twice for the same offence. 23. The Government argued that the applicant ’ s conduct during the incident of 12 February 2003 had constituted two different offences with essentially different elements and that the applicant had therefore been convicted in two different sets of proceedings by two different courts. In the minor-offences proceedings, he had been found guilty of disturbing public order and peace because he had verbally and physically attacked his former wife in the presence of their minor children and neighbours. The purpose of the sanction in those proceedings had been to protect the well-being of citizens and to safeguard public order and the peace in a broader sense. Moreover, the penalty imposed in the minor-offences proceedings was not severe enough for an offence that was serious enough to be qualified as criminal in nature: the Minor Offences Court imposed a minimal fine of BAM 150 on the applicant. The criminal proceedings, on the other hand, concerned the consequence of the applicant ’ s actions: grievous bodily harm inflicted on M.P., of which the Minor Offences Court had not been aware. The assault itself could not be seen as a minor offence, so it was dealt with in criminal proceedings. Inflicting grievous bodily harm could not be seen as identical to the offence of disturbing public order and the peace, for which the applicant was punished in the proceedings before the Minor Offences Court. 2. The Court ’ s assessment (a) Whether the first penalty was criminal in nature 24. The Court observes that on 16 August 2004 the applicant was found guilty in proceedings conducted under the Public Order Act 2000 and fined BAM 150. Under the legal classification in Bosnia and Herzegovina it is not entirely clear whether “minor offences” are to be regarded as “criminal”. Thus, in order to determine whether the applicant was “finally acquitted or convicted in accordance with the law and penal procedure of [the] State”, the first issue to be decided is whether those proceedings concerned a “criminal” matter within the meaning of Article 4 of Protocol No. 7. 25. The Court reiterates that the legal characterisation of the procedure under national law cannot be the sole criterion of relevance for the applicability of the principle of ne bis in idem under Article 4 § 1 of Protocol No. 7. Otherwise, the application of this provision would be left to the discretion of the Contracting States to a degree that might lead to results that are incompatible with the object and purpose of the Convention (see, for example, Storbråten v. Norway (dec.), no. 12277/04, ECHR 2007 ‑ ... ( extracts), with further references ). The notion of “penal procedure” in the text of Article 4 of Protocol No. 7 must be interpreted in the light of the general principles concerning the corresponding words “criminal charge” and “penalty” in Articles 6 and 7 of the Convention respectively (see Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004; Nilsson v. Sweden (dec.), no. 73661/01, ECHR 2005 ‑ ...; and Haarvig v. Norway (dec.), no. 11187/05, 11 December 2007). 26. The Court ’ s established case-law sets out three criteria, commonly known as the “ Engel criteria ” (see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 82-86, ECHR 2003 ‑ X, and Jussila v. Finland [GC], no. 73 053/01, §§ 30-31, ECHR 2006 ‑ ... ). 27. The domestic legal classification of the offence at issue was a “ minor offence ” under section 3(1)(2 ) of the Public Order Act 2000 (see paragraph 16 above). Nevertheless, the Court has previously found that certain offences have a criminal connotation even though they are regarded under relevant domestic law as too trivial to be governed by criminal law and procedure (see Ziliberberg v. Moldova, no. 61821/00, §§ 32-35, 1 February 2005; Menesheva v. Russia, no. 59261/00, § 96, ECHR 2006 ‑ ...; and Maresti, cited above, § 58 ). 28. The purpose of including the offence at issue in the Public Order Act 2000 was to guarantee the protection of human dignity and public order – values and interests that normally fall within the sphere of protection of criminal law. The relevant provision of the Act was directed towards all citizens, rather than towards a group with a special status. Any reference to the “minor” nature of the acts does not, in itself, exclude its classification as “criminal” in the autonomous sense of the Convention, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the Engel criteria, necessarily requires a certain degree of seriousness (see Ezeh, cited above, § 104). Lastly, the Court considers that the primary aims in establishing the offence in question were punishment and deterrence, which are recognised as characteristic features of criminal penalties (ibid., §§ 102 and 105). 29. As to the degree of severity of the measure, it is determined by reference to the maximum potential penalty for which the relevant law provides. The actual penalty imposed is relevant to the determination, but it cannot diminish the importance of what was initially at stake (ibid., § 120). The Court observes that at the relevant time, section 6(1) of the Public Order Act 2000 provided for sixty days ’ imprisonment as the maximum penalty, even if the applicant was eventually sentenced to a fine in the amount of BAM 150. 30. It is a common feature of all criminal-law systems that some criminal offences are liable to fines while others entail deprivation of liberty. In the present case, the prison sentence imposed on the applicant in the criminal proceedings was eventually converted to a fine in the amount of BAM 9,000. The two criteria, the nature of the offence and the nature and degree of severity of the penalty, are alternative and not necessarily cumulative. It is sufficient that the offence in question is by its nature criminal from the point of view of the Convention (see Lauko v. Slovakia, 2 September 1998, § 56, Reports of Judgments and Decisions 1998 ‑ VI; Kadubec v. Slovakia, 2 September 1998, § 52, Reports of Judgments and Decisions 1998 ‑ VI; and Tsonyo Tsonev v. Bulgaria (no. 2), no. 2376/03, § 49, 14 January 2010). 31. In the light of the above considerations, the Court concludes that the nature of the offence in question was such as to bring the applicant ’ s conviction of 16 August 2004 within the ambit of “penal procedure” for the purposes of Article 4 of Protocol No. 7. (b) Whether the offences for which the applicant was prosecuted were the same ( idem ) 32. In the case of Sergey Zolotukhin v. Russia ( cited above, §§ 70-78 ), the Court observed that the body of case-law that it had accumulated throughout the history of application of Article 4 of Protocol No. 7 demonstrated the existence of several approaches to the question of whether the offences for which an applicant was prosecuted were the same. Seeking to put an end to this legal uncertainty, the Court decided to provide a harmonised interpretation of the notion of the “same offences” – the idem element of the ne bis in idem principle. 33. In the Sergey Zolotukhin case (§ 82) the Court took the view that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same. 34. Turning to the present case, the Court notes that in both the minor-offences proceedings and the criminal proceedings the applicant was found guilty of the same conduct towards the same victim and within the same time frame (see paragraphs 7 and 11 above). In 2011 the Constitutional Court rejected his appeal applying the pre- Zolotukhin case-law. Its approach had since evolved (see paragraph 18 above). The Court further notes that the definition of the minor offence under section 3(1)(2 ) of the Public Order Act 2000 does not, as such, include inflicting bodily harm, whereas that element is crucial for the criminal offence of inflicting grievous bodily harm under Article 177 of the 1998 Criminal Code. However, in its decision, the Minor Offences Court expressly stated that the applicant was guilty of, inter alia, slapping M.P. and of punching her about her entire body. The physical attack on M.P. thus constituted an element of the minor offence of which the applicant was found guilty (in this connection, see Maresti, cited above, § 63). In the criminal proceedings before the Municipal Court the applicant was again found guilty of, inter alia, hitting M.P. The events described in the decisions adopted in both sets of proceedings took place at about 6.40 p.m. on 12 February 2003 in M.P. ’ s flat in Kakanj. It is obvious that both decisions concerned exactly the same event and the same acts, regardless of the fact that the decision of the Municipal Court stated that the event took place at about 7 p.m. 35. The facts of the two offences must therefore be regarded as substantially the same for the purposes of Article 4 of Protocol No. 7. (c) Whether there was a duplication of proceedings ( bis ) 36. The aim of Article 4 of Protocol No. 7 is to prohibit the repetition of proceedings which have been concluded by a “final” decision. A decision is final for the purposes of this provision if it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available, or when the parties have exhausted such remedies or have permitted the time ‑ limit to expire without availing themselves of them (see Sergey Zolotukhin, cited above, §§ 107 and 108, with further references). 37. In the present case, the Minor Offences Court delivered its decision on 16 August 2004 and it became final on 19 October 2004. The criminal proceedings were instituted on 18 September 2003 while the minor-offences proceedings were still pending. Thus the two proceedings were conducted concurrently. At the time the minor-offences conviction became final and required the force of res iudicata, the criminal proceedings were pending before the first-instance court. In these circumstances, the Court considers that the Municipal Court should have terminated the criminal proceedings following the delivery of a “final” decision in the first proceedings (see, Zigarella v. Italy (dec.), no. 48154/99, ECHR 2002 ‑ IX (extracts) and Sergey Zolotukhin, cited above, § 115 ). Furthemore, when deciding the applicant ’ s appeal the Constitutional Court failed to bring its case-law in line with this Court ’ s approach taken in the Zolotukhin case. (d) Conclusion 38. The applicant was “convicted” in minor-offences proceedings which are to be assimilated to “criminal proceedings” within the autonomous Convention meaning of this term. After this “conviction” became final, he was found guilty of a criminal offence which related to the same conduct as that punished in the minor-offences proceedings and encompassed substantially the same facts. The Constitutional Court failed to apply the principles established in the Zolotukhin case and thus to correct the applicant ’ s situation. 39. In the light of the foregoing, the Court considers that the proceedings instituted against the applicant under Article 177 § 1 of the 1998 Criminal Code concerned essentially the same offence as that of which he had already been convicted by a final decision under section 3(1)(2 ) of the Public Order Act 2000. 40. There has therefore been a violation of Article 4 of Protocol No. 7. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 41. The Court has examined the other complaints submitted by the applicant under Articles 6 and 14 of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. 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 43. The applicant claimed 1,200 euros (EUR) in respect of non-pecuniary damage. 44. The Government considered the amount claimed unjustified. 45. In the circumstances of the present case the Court considers that a finding of a violation of Article 4 of Protocol No. 7 to the Convention constitutes in itself sufficient just satisfaction. B. Costs and expenses 46. The applicant also claimed EUR 1,163 for the costs and expenses incurred before this Court. 47. The Government considered the amounts claimed unjustified. 48. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and 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 requested sum of EUR 1,163 for costs and expenses in the proceedings before the Court, plus any tax that may be chargeable to him on this amount. C. Default interest 49. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that had been a violation of Article 4 of Protocol No. 7. It found that the applicant was “convicted” in minor-offences proceedings which were to be assimilated to “criminal proceedings” within the autonomous Convention meaning of this term. After this “conviction” became final, he was found guilty of a criminal offence which related to the same conduct as that punished in the minor-offences proceedings and encompassed substantially the same facts. The Constitutional Court failed to apply the principles established in the Sergey Zolotukhin case (see above) and thus to correct the applicant’s situation. The Court therefore considered that the proceedings instituted against the applicant under the 1998 Criminal Code concerned essentially the same offence as that of which he had already been convicted by a final decision under the Public Order Act 2000. |
346 | Rape and sexual abuse | II. RELEVANT DOMESTIC LAW 20. The relevant parts of the Criminal Code read at the material time as follows: Article 171. Rape “Rape, or sexual intercourse committed by use of physical or psychological compulsion on [a] person or by taking advantage of the victim ’ s impossibility to defend herself or to freely consent, is punishable with imprisonment from 3 to 5 years. Rape: committed repeatedly ..., is punishable with imprisonment from 5 to 15 years. ...” 21. The relevant parts of the Code of Criminal Procedure read at the material time as follows: Article 274. Initiation of criminal proceedings “After receiving a criminal complaint from which a reasonable suspicion that an offence has been perpetrated transpires, the criminal investigation organ or the prosecutor shall initiate criminal proceedings within 30 days ... ” 22. According to Articles 298, 299 and 313 of the Code of Criminal Procedure a complaint about ill-treatment is to be lodged with the Prosecutor ’ s Office and the decision of that office is to be challenged before the hierarchically superior Prosecutor ’ s Office. The decision of the latter body can be challenged before an investigation judge. The explanatory judgments of the Plenary Supreme Court No. 7 and No. 8 dated 4 April 2005 and 30 October 2009 respectively, confirm that this is the remedy to be used in cases concerning ill-treatment and torture. THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 23. The applicant complained that the Moldovan authorities had not investigated her allegations of rape effectively. In her view, that had amounted to a violation of the State ’ s positive obligations to protect the individual ’ s physical integrity and private life and to provide effective remedies in this respect. Articles 3, 8 and 13 of the Convention, on which the applicant relied, read as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 8 § 1 “Everyone has the right to respect for his private ... life ...” A. Admissibility 24. The Government recalled that in Ipati v. the Republic of Moldova (no. 55408/07, 5 February 2013), a case concerning the applicant ’ s ill-treatment by police, the Court dismissed their objection of non-exhaustion of domestic remedies based on the applicant ’ s failure to lodge an appeal with the investigating judge. Based on that decision, the Government considered that it was the Court ’ s ruling that the appeals before the investigating judges in such cases were not to be considered an effective remedy and thus, that they were not to be pursued. Accordingly, the Government submitted that the six-month time limit for lodging the present application should have been calculated from 22 August 2011 and not from 23 November 2011, i.e. the date of the decision issued by the investigating judge. They asked the Court to declare the application inadmissible for failure to observe the six-month time-limit. 25. The applicant disagreed with the Government and argued that she had complied with the six-month time limit as required by Article 35 § 1 of the Convention. 26. The Court recalls that in Ipati, it rejected the Government ’ s non-exhaustion objection as the investigation had lasted over five years and the applicant had already appealed to the investigation judge three times without any success before applying to the Court. It was a decision which was based on the specific facts of that case and it was not the Court ’ s intention to declare that the appeals to investigation judges lodged in accordance with Article 313 of the Code of Criminal Procedure were not an effective remedy. This is confirmed by the fact that in a subsequent decision in the case of Cuprianov v. Moldova (( dec. ) 34115/09, 26 March 2013), the Court declared inadmissible the applicant ’ s complaint about ill-treatment under Article 3 of the Convention on account of his failure to lodge an appeal with the investigation judge. 27. The Court therefore concludes that the application cannot be declared inadmissible for failure to observe the six-month time-limit, accordingly, the Government ’ s objection is dismissed. The Court further notes that the complaints under Articles 3 and 8 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 28. The applicant submitted that the domestic authorities had failed to effectively assess the circumstances of the case and had therefore fallen short of the positive obligation to enact criminal law provisions effectively punishing sexual assault. In her view, the investigation conducted by the prosecutors was ineffective and flawed with many shortcomings. 29. The Government submitted that the prosecutors did not initiate criminal proceedings after receiving the applicant ’ s complaint about the rape, because there was no prima facia evidence that she had been a victim of rape. In their view the medical reports did not provide such evidence. Moreover, according the Government, the prosecutors did everything that could have reasonably been done in order to elucidate the circumstances of the case. 30. 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 Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001 ‑ V; and A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). 31. In a number of cases, Article 3 of the Convention was found to give rise to a positive obligation to conduct an official investigation (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII). Such a positive obligation cannot be considered, in principle, to be limited solely to cases of ill-treatment by State agents (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002-I). 32. On that basis, the Court considers that States have positive obligations inherent in Article 3 of the Convention to enact criminal ‑ law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, §§ 149-153, ECHR 2003 ‑ XII ). 33. Turning to the facts of the present case, the Court notes that the investigation conducted by the Moldovan prosecutors was flawed in a number of ways. In the first place, the prosecutors refused to initiate criminal proceedings after receiving the applicant ’ s complaint, apparently treating her allegations as not serious enough. That happened in spite of the findings in the initial medical reports to the effect that the applicant had signs of violence on her body and traces of semen in her vagina and the alleged rapist had scratches on his neck characteristic of rape (see paragraphs 9 and 10 above). The Court finds it difficult to accept the Government ’ s position that there had been no sufficient prima facie evidence which would warrant the initiation of criminal proceedings in accordance with Article 274 of the Criminal Procedure Code. 34. The Court further notes that on 6 August 2010, the Prosecutor ’ s Office dismissed the applicant ’ s complaint without hearing any witnesses and/or conducting any kind of investigation. That decision was quashed by an investigation judge on 7 February 2011 on the grounds that the investigation had been incomplete and superficial. 35. In the re-opened investigation, the Prosecutor ’ s Office obtained new medical reports, heard O.P. ’ s parents and one of his friends. No confrontation between the applicant and O.P. was conducted and no other witnesses were heard. The prosecutor accepted without any reserve O.P. ’ s version of the facts according to which the applicant had not been forced to come with him on the evening of 10 May 2010. He did not question her neighbours or the employees of a petrol station who, according to the applicant, witnessed her attempts to escape from O.P. The investigator did not attempt to find an explanation to O.P. ’ s divergent statements given to the forensic experts and to the prosecutor as to whether he had had intercourse with the applicant on 10 May 2010 (see paragraphs 10 and 11 above). The applicant informed the prosecutor that on 11 May 2010 she had gone to a hospital and had been diagnosed with concussion as a result of the assault. That information was not verified during the investigation. And finally, by the time the prosecutor had decided that O.P. had committed a minor offence, the time-limit for such proceedings had expired. 36. In view of the above, the Court, without expressing an opinion on the guilt of O.P., finds that the investigation of the applicant ’ s case fell short of the requirements inherent in the State ’ s positive obligations to effectively investigate and punish rape and sexual abuse. The Court thus finds that in the present case there has been a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. In view of this conclusion it also holds that no separate issue arises under Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 37. The applicant contended that she had not had any effective remedies in respect of the breach of her rights guaranteed by Articles 3 and 8 of the Convention and that there had therefore been a breach of Article 13, which reads as follows: Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Admissibility 38. 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 39. The applicant submitted that she had not had any criminal-law remedies because the criminal investigation had been ineffective, and as a result of that ineffectiveness, she had not had any effective civil remedies by which to claim compensation from O.P. 40. The Government submitted that there had been no violation of Article 13 in the present case. 41. In so far as the first part of the applicants ’ complaint is concerned, namely that she did not have effective criminal-law remedies in respect of her allegation of rape, the Court notes that it does not raise any separate issue from that examined under Article 3. 42. As to the other part of the complaint, the Court considers that, given the inadequacy of the investigation into the circumstances of the applicant ’ s allegation of rape, a civil claim relying on the same facts and allegations would not have had any prospect of success. Accordingly, the Court considers that it has not been shown that effective remedies existed enabling the applicant to claim compensation for the alleged rape (see, Timus and Tarus v. the Republic of Moldova, no. 70077/11, § 64, 15 October 2013 ). There has therefore been a violation of Article 13 taken in conjunction with Article 3 of the Convention. No separate issue arises under Article 13 taken in conjunction with Article 8 of the Convention. III. 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.” A. Damage 44. The applicant claimed 90,000 euros (EUR) in respect of non-pecuniary damage. She submitted that she had suffered anguish and distress. 45. The Government disputed the amount claimed by the applicant and argued that it was excessive. 46. Having regard to the violations 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 10,000. B. Costs and expenses 47. The applicant also claimed EUR 5,607 for costs and expenses incurred before the Court. She submitted relevant documents in support of her claims. 48. The Government objected and argued that the amount was excessive. 49. The Court awards EUR 2,000 for costs and expenses. C. Default interest 50. 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 procedural violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the investigation of the applicant’s case had fallen short of the requirements inherent in the State’s positive obligations to effectively investigate and punish all forms of rape and sexual abuse. It also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention taken in conjunction with Article 3 in so far as the applicant’s complaint about the lack of civil remedies was concerned. |
1,090 | Order to repay mistakenly paid unemployment benefits | II. RELEVANT DOMESTIC LAW 40. The relevant part of the Employment Act ( Zakon o zapošljavanju, Official Gazette no. 59/1996), as in force at the material time, provided : Section 23 “ ... (3) An unemployed person (a man) who was employed for thirty years, or an unemployed person (a woman) who was employed for twenty-five years, is entitled to unemployment benefits until [he or she is] next employed ... ... “ Section 25 “ The duration of the right to unemployment benefit ... shall be extended in respect of the unemployed person ... : ... 2. during the period of temporary incapacity to work, within the meaning of health insurance regulations, while this incapacity is ongoing, but for no longer than twelve months; ... ” 41. The relevant part of the Employment Mediation and Unemployment Rights Act ( Zakon o posredovanju pri zapošljavanju i pravima za vrijeme nezaposlenosti, Official Gazette no. 32/2002, with its subsequent amendments ), as in force at the material time, provided: Section 55 “(1) An unemployed person granted an allowance to which he or she was not entitled ... shall pay this back if: 1) [ all or part of the allowance was] granted on the basis of false or inaccurate data which he or she knew or ought to have known to be false or inaccurate, or [granted] in some other unlawful manner; 2) he or she was granted an allowance because he or she failed to report a change affecting [his or her entitlement] or the scope of the entitlement, and he or she knew or ought to have known about this change. ... ” 42. The relevant part of the Employment Mediation and Unemployment Rights Act as amended in 2017 ( Zakon o posredovanju pri zapošljavanju i pravima za vrijeme nezaposlenosti, Official Gazette no. 16 /20 17) reads as follows: Section 65 “(1) An unemployed person granted an allowance at the expense of the [Employment] Bureau to which he or she was not entitled shall pay this back to the [Employment] Bureau on the basis of unjust enrichment. ... ” 43. The relevant part of the Civil Obligations Act ( Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999), as in force at the material time, provided : UNJUST ENRICHMENTGENERAL RULE Section 210 “ (1) When a part of the property of one person passes, by any means, into the property of another person, and such a transfer has no basis in a legal transaction or law, the acquirer shall return that property. If this is not possible, the acquirer shall provide compensation for the value of the benefit received. (2) The transfer of property also includes any benefit obtained by someone performing an action. (3) The obligation to return the property or provide compensation for its value shall arise even when something is received on account of a cause which did not exist or which subsequently ceased to exist. ” RULES OF REIMBURSEMENT When a reimbursement may not be requestedSection 211 “ A person who has made payment knowing that he was not obliged to pay is not allowed to seek reimbursement, unless he has retained a right to seek reimbursement or has made payment in order to avoid duress.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 44. The applicant complained that the Rijeka County Court ’ s judgment of 25 February 2009 ordering her to repay HRK 19,451.69 with interest to the Rijeka Employment Bureau had resulted in her being deprived of her possessions. She relied on Article 1 of Protocol No. 1 to the Convention, which reads : “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Scope of the case 45. As to the scope of the case, the Court considers it appropriate to point out at the outset that the applicant ’ s communicated complaint does not concern the Employment Bureau ’ s decision to terminate her entitlement to unemployment benefits and administrative proceedings related to that decision. Rather, it refers to the domestic civil courts ’ judgments which characterized the amounts she had received after her right to employment benefits ceased as unjust enrichment and obliged her to repay that money together with interests to the State. 46. The Court notes, however, that the administrative proceedings concerning the applicant ’ s right to unemployment benefits ran in part concurrently with the civil proceedings for unjust enrichment instituted against her by the State. The administrative proceedings were terminated by the Constitutional Court ’ s decision of 19 December 2012. At that point, the civil proceedings were still ongoing and were finally concluded by the Constitutional Court ’ s decision of 14 March 2013, served on the applicant on 27 March 2013. The two proceedings were to a certain extent interrelated. In the administrative proceedings, her right to receive the employment benefits was terminated retroactively. However, no final court decision as to whether the applicant was obliged to return the payments made to her after the date when her right to unemployment benefits ceased was adopted in these proceedings since the issue of unjust enrichment falls under the jurisdiction of civil courts ( see paragraph 1 8 above). Only after the civil proceedings were finally concluded was the applicant ’ s position as to her obligation to repay the money she had received finally decided at national level. 47. Thus, in order to assess whether the applicant ’ s obligation to repay the State the money she should not have received satisfied the requirements of Article 1 of Protocol No. 1 the Court must look at all circumstances surrounding that issue. B. Admissibility 1. The parties ’ submissions 48. The Government argued that the applicant had not had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention, because the amount she had been ordered to pay back had been the possession of the State. Further to this, section 25(1)(2) of the Employment Act had been publicly available, clear and precise, and the applicant should have been aware that, upon the expiry of the twelve-month period, her right to unemployment benefits would end. In addition, the applicant could not have had “legitimate expectations” of keeping those amounts. 49. The applicant argued that she had received the unemployment benefits on the basis of the Rijeka Employment Bureau ’ s final decision of 27 June 1997. 2. The Court ’ s assessment (a) General principles 50. The Court reiterates at the outset that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law: 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, among many authorities, Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II, and Depalle v. France [GC], no. 34044/02, § 62, ECHR 2010). 51. Although Article 1 of Protocol No. 1 applies only to a person ’ s existing possessions and does not create a right to acquire property in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I; and Béláné Nagy v. Hungary [GC], no. 53080/13, § 74, ECHR 2016 ). 52. A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition. Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts. The mere fact that a property right is subject to revocation in certain circumstances does not prevent it from being a “possession” within the meaning of Article 1 of Protocol No. 1, at least until it is revoked ( see Béláné Nagy, cited above, § 75; Beyeler v. Italy [GC], no. 33202/96, § 105, ECHR 2000 ‑ I; and Krstić v. Serbia, no. 45394/06, § 83, 10 December 2013 ). 53. The Court recalls that in each case 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 Depalle, cited above, § 62, with further references). (b) Application of these principles in the present case 54. The question whether the circumstances of the present case come within the scope of application of Article 1 of Protocol No. 1, i.e. whether the applicant ’ s right to peaceful enjoyment of her possessions is engaged, must be assessed with a view to the fact that between 10 June 1998 and 27 March 2001 the applicant had received payments on the basis of an administrative decision granting her unemployment benefits ( see paragraph 10 above). In other words, the competent administrative authority had made regular disbursements of money (cash), which the applicant had obtained the effective enjoyment of in reliance on the underlying administrative decision in her favour. Subsequently, however, the domestic courts made a finding to the effect that the payments had taken place without a legal basis and ordered the applicant to refund the respective amounts as unjust enrichment ( see paragraph 2 7 above). The Court therefore finds that the issue of whether Article 1 of Protocol No. 1 is applicable ratione materiae should be analysed by considering whether, under those specific circumstances, the applicant can be said to have had a legitimate expectation, within the autonomous meaning of the Convention, of being able to retain the funds already received as unemployment benefits without her entitlement to those past disbursements being called into question retrospectively. 55. The Court notes that the grant of the benefit in question depended on various statutory conditions, the assessment of which was the sole responsibility of the social security authority. In the present case, the competent authority had taken a decision to extend the applicant ’ s entitlement to unemployment benefits ( see paragraph 10 above) and subsequently continued to make the respective payments beyond the date on which such an entitlement was, according to the applicable statutory limit, due to expire. 56. In this respect, the Court considers that an individual should in principle be entitled to rely on the validity of a final (or otherwise enforceable) administrative decision in his or her favour, and on the implementing measures already taken pursuant to it, provided that neither the beneficiary nor anyone on his or her behalf has contributed to such a decision having been wrongly made or wrongly implemented. Thus, while an administrative decision may be subject to revocation for the future ( ex nunc), an expectation that it should not be called into question retrospectively ( ex tunc) should usually be recognised as being legitimate, at least unless there are weighty reasons to the contrary in the general interest or in the interest of third parties (compare Kopecký v. Slovakia [GC], no. 44912/98, § 47, ECHR 2004 ‑ IX; Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § § 34 and 39, Series A no. 332 ). 57. The Court has held that, as a rule, a legitimate expectation of being able to continue having peaceful enjoyment of a possession must have a “sufficient basis in national law” ( see ibid., § 52; see also Depalle, cited above, § 63). It has, however, also held that the fact that the domestic laws of a State do not recognise a particular interest as a “right” is not always decisive, in particular in circumstances where the lapse of time justifies concluding that the individual ’ s interest in the “status quo” had become vested in a sufficiently established manner for being recognised as capable of engaging the application of Article 1 of Protocol No. 1 (see, mutatis mutandis, Depalle, cited above, § 68). 58. In the present case, the Court considers that although the domestic courts found that as a matter of domestic law, the applicant had no protection against the authorities ’ reclaim of the funds already received, which according to them constituted unjust enrichment ( see paragraph 2 7 above), several circumstances speak in favour of recognising the applicant ’ s legal position as protected by a “legitimate expectation” for the purposes of the application of Article 1 of Protocol No. 1. 59. Firstly, there is no indication or even allegation that the applicant had in any way contributed to the impugned situation, namely that the disbursement of the benefits had been continued beyond the applicable statutory time-limit. The Government accepted that payment of the unemployment benefits beyond the prescribed time-limit was the sole responsibility of the authorities ( see paragraph 7 0 below). 60. Secondly, the applicant ’ s good faith in receiving the contested unemployment benefits is not contested. 61. Thirdly, the administrative decision in reliance on which the applicant had received the payments had not contained any express mention of the fact that under the relevant statutory provisions the entitlement would expire on a certain date, i.e. after twelve months. 62. Fourthly, there was a long lapse of time, amounting to over three years, after the expiry of the statutory time-limit during which the authorities failed to react while continuing to make the monthly payments. 63. The Court finds that these circumstances were capable of inducing in the applicant a belief that she was entitled to receive those payments (compare Chroust v. the Czech Republic (dec.), no. 4295/03, 20 November 2006). 64. Moreover, the Court considers that, taking into account in particular the nature of the benefits as current support for basic subsistence needs, the question of whether the situation was capable of giving rise to a legitimate expectation that the entitlement was duly in place must be assessed with a view to the situation prevailing at the time when the applicant was in receipt of the payments and consumed the proceeds. The fact that the administrative courts subsequently established that the payments had taken place without a legal basis in domestic law is under these circumstances not decisive from the point of view of determining whether at the time when the payments were received for the purpose of covering the applicant ’ s living costs she could entertain a legitimate expectation that her presumed entitlement to those funds would not be capable of being called into question retrospectively (see, mutatis mutandis, Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222; and Stretch v. the United Kingdom, no. 44277/98, § 35, 24 June 2003). 65. The Court therefore concludes that in the circumstances of the present case, the applicant had a legitimate expectation of being able to rely on the payments she had received as rightful entitlements and that Article 1 of Protocol No. 1 is applicable ratione materiae to her complaint. 3. Conclusion as to the admissibility 66. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. C. Merits 1. The parties ’ submissions (a) The applicant ’ s submissions 67. The applicant alleged that the Rijeka Employment Bureau had adopted a decision granting her unemployment benefits “until further notice”. Moreover, on 26 May 1999, that is one year after her right to unemployment benefits had allegedly ceased, the Rijeka Employment Bureau had provided her with an “unemployment benefit card”, which had stated that she was entitled to unemployment benefits until 31 December 2010. She alleged that she had had no reason to doubt that the payments were legitimate. In her opinion, she had received the unemployment benefits legally, and there was no legal basis for repaying the amount at issue, as had been established by the Rijeka Municipal Court. Moreover, section 211 of the Civil Obligations Act had been totally disregarded by the courts ( see paragraph 43 above). The Rijeka Employment Bureau had known that she would not be entitled to the unemployment benefits after 10 June 1998, because it had stated that in its decision of 27 March 2001. Therefore, the Rijeka Employment Bureau had not retained its right to seek reimbursement. 68. As to the Government ’ s allegations that she had failed to respond to the Rijeka Employment Bureau ’ s proposals regarding repayment of the amount due in sixty instalments, the applicant argued that this was not true, because it could be seen from the documents she had submitted to the Court that she had replied and informed the Rijeka Employment Bureau about her difficult economic and health situation. In this connection, the applicant maintained that dividing the burden between the Rijeka Employment Bureau, whose negligence and misconduct had created the situation, and herself, an unemployed person with no income and in poor health, would not be fair, and would impose a burden on her as a result of the State organ ’ s error. (b) The Government ’ s submissions 69. The Government argued, were the Court to find that the applicant had possession, that the interference with the applicant ’ s rights under Article 1 of Protocol No. 1 was lawful. The judgment ordering the applicant to repay the unemployment benefits had had its legal basis in section 210 of the Civil Obligation Act, which had been clear, foreseeable and publicly available. Further to this, it had been in the general interest for the unduly received benefits to be paid back. 70. In conclusion, the Government stated that depriving the applicant of the amount at issue had been necessary for the protection of State ’ s finances and the principle of rule of law, and had not imposed an excessive individual burden on her because she had been not entitled to this amount. They pointed out that, just as it could not be expected that the mistakes of the State would be remedied at the expense of citizens, it was not fair to allow the unlawful acquisition of property by citizens as a result of those mistakes. In this context, the Government pointed out that the Rijeka Employment Bureau had been fully aware of its own mistake. That is why the Rijeka Employment Bureau had proposed an agreement whereby the applicant would repay the amount due in sixty individual instalments, in order to share the burden of the situation. However, the applicant had failed to respond to this proposal. In view of the foregoing, the Government were of the opinion that there had been no violation of the applicant ’ s rights protected by Article 1 of Protocol No. 1 to the Convention. 2. The Court ’ s assessment ( a ) As regards the issue of the existence of an interference 71. The Government does not contest that the impugned judgment adopted in the civil proceedings against the applicant amounted to an interference with her rights under Article 1 of Protocol No. 1, and the Court sees no reason to hold otherwise. 72. In the circumstances of the present case, the Court considers that the applicant ’ s complaint should be examined under the general rule enunciated in the first sentence of the first paragraph of Article 1 of Protocol No. 1, especially as the situations envisaged in the second sentence of the first paragraph and in the second paragraph are only particular instances of interference with the right to peaceful enjoyment of property as guaranteed by the general rule set forth in the first sentence ( see Beyeler, cited above, § 106; and Perdigão v. Portugal [GC], no. 24768/06, § 62, 16 November 2010 ). The Court will now assess whether that interference was prescribed by law, whether it pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim pursued ( see Broniowski v. Poland [GC], no. 31443/96, §§ 147-151, ECHR 2004 ‑ V). ( b ) Whether the interference was based in law 73. The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions must be lawful. In particular, the second paragraph of Article 1 of Protocol No. 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, Konstantin Stefanov v. Bulgaria, no. 35399/05, § 54, 2 7 October 2015). 74. The parties ’ views differed as to whether the interference with the applicant ’ s property right was lawful ( see paragraphs 49 and 68 above). 75. The Court notes that the Rijeka County Court ’ s judgment relied on section 210 of the Civil Obligations Act related to unjust enrichment ( see paragraphs 28 and 44 above). However, it did not give any explanation as to why section 55 of the Employment Mediation and Unemployment Rights Act was not to be applied in the applicant ’ s case since that rule appears to be a more specific one as regards the applicant ’ s situation. That provision obliged an unemployed person granted an allowance to which he or she had not been entitled to pay this back if it had been granted on the basis of false or inaccurate data which he or she had known to be false or inaccurate, or if it had been granted in some other unlawful manner ( see paragraph 4 1 above). This question can nevertheless be left open, as in the present case it is more essential to decide on the proportionality of the interference. ( c ) Whether the interference pursued a legitimate aim 76. The Court reiterates that the domestic court ’ s judgment in this case was based on the general rules of civil law governing unjust enrichment and not on the legislation governing unemployment benefits. The Court considers therefore that the interference pursued a legitimate aim since it is in the public interest that property received on a basis which does not exist or which has ceased to exist should be returned to the State. In particular, the interference was aimed at correcting a mistake of the social security authority. ( d ) Whether the interference was proportionate 77. The Court must examine whether the interference struck the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the applicant ’ s right to the peaceful enjoyment of her possessions, and whether it imposed a disproportionate and excessive burden on the applicant (see, among other authorities, Béláné Nagy, cited above, § 115 ). 78. The Court finds it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, and will respect the legislature ’ s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (ibid., § 113). However, that margin may be narrower in cases such as the present one, where the mistake is attributable solely to the State authorities. 79. The Court has held, in the context of the discontinuation of a social benefit, that bearing in mind the importance of social justice, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to the social security fund, in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest ( see Moskal v. Poland, no. 10373/05, § 73, 15 September 2009). 80. The present case, however, stands to be distinguished from the situation prevailing in Moskal, because unlike the latter case, what is at issue now is not the discontinuation of the applicant ’ s unemployment benefit but an obligation imposed on her to repay benefits already received in reliance on an administrative decision. In the present context, it is therefore more pertinent to recall the Court ’ s case-law to the effect that mistakes solely attributable to State authorities should in principle not be remedied at the expense of the individual concerned, especially where no other conflicting private interest is at stake (see, mutatis mutandis, Platakou v. Greece, no. 38460/97, § 39, ECHR 2001 ‑ I; Radchikov v. Russia, no. 65582/01, § 50, 24 May 2007; Freitag v. Germany, no. 71440/01, §§ 37-42, 19 July 2007; Gashi, cited above, § 40; and Šimecki v. Croatia, no. 15253/10, § 46, 30 April 2014). The Court has also held that where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner ( see Tunnel Report Limited v. France, no. 27940/07, § 39, 18 November 2010, and Zolotas v. Greece (no. 2), no. 66610/09, § 42, ECHR 2013 (extracts) ). 81. In assessing compliance with Article 1 of Protocol No. 1, the Court must carry out an overall examination of the various interests in issue ( see Perdigão, cited above, § 68), bearing in mind that the Convention is intended to safeguard rights that are “practical and effective” (see, for example, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 100, ECHR 1999 ‑ III). It must look behind appearances and investigate the realities of the situation complained of ( see Broniowski, cited above, § 151; Hutten-Czapska v. Poland [GC], no. 35014/97, § 168, ECHR 2006 ‑ VIII; and Zammit and Attard Cassar v. Malta, no. 1046/12, § 57, 30 July 2015). That assessment may involve the conduct of the parties, including the means employed by the State and their implementation. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State ’ s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner ( see Tunnel Report Limited v. France, no. 27940/07, § 39, 18 November 2010, and Zolotas v. Greece (no. 2), no. 66610/09, § 42, ECHR 2013 (extracts) ). 82. As to the applicant ’ s conduct, the Court notes that the applicant has not been alleged to have contributed to the receipt of benefits beyond her legal entitlement by false submissions or other acts which would not have been in good faith. 83. As the competent authority had taken a decision in the applicant ’ s favour and continued to make the respective payments, the applicant had a legitimate basis for assuming that the payments received were legally correct. While it is true that section 25 of the Employment Act clearly provides that a woman employed for less than twenty-five years has the right to unemployment benefits in respect of a temporary incapacity to work, for a maximum period of twelve months ( see paragraph 41 above), the decision issued to the applicant had not contained any express mention of that time-limit, and the applicant was thus not put on notice of it. Moreover, given that two additional years of service had been entered into the applicant ’ s employment book ( see paragraph 11 above), it appears that she, as an unqualified worker, was not without grounds for believing that she met the requirements set out in section 23(3) of the Employment Act ( see paragraph 4 0 above). Under these circumstances, the Court does not find it reasonable to conclude that the applicant was required to realise that she was in receipt of unemployment benefits beyond the statutory maximum period. 84. As to the conduct of the authorities, the Court notes at the outset that, in the context of property rights, particular importance must be attached to the principle of good governance. In the instant case, the Court considers that the authorities failed in their duty to act in good time and in an appropriate and consistent manner ( see Moskal, cited above, § 72). 85. It is established that the Rijeka Employment Bureau made a mistake when it did not define the period during which the applicant was entitled to further unemployment benefits in its decision of 27 June 1997. That mistake was further perpetuated when unemployment benefits were paid to the applicant for a period of almost three years following the expiry of the maximum period set out in section 25(2)(1) of the Employment Act. 86. The Court also notes that, even though the unemployment benefit payments which the applicant should not have received were entirely the result of an error of the State, the applicant was ordered to repay the overpaid amount in full, together with statutory interest. Therefore, no responsibility of the State for creating the situation at issue was established, and the State avoided any consequences of its own error. The whole burden was placed on the applicant only. 87. The Court acknowledges that the applicant was offered to repay her debt in sixty instalments. However, the fact remains that the sum the applicant was ordered to repay to the State which included the statutory interests as well represented a significant amount of money for her given that she was deprived of her only source of income at the same time as well as her overall financial situation ( see paragraphs 1 5, 24 and 3 1 above). 88. As to the applicant ’ s personal situation, the Court notes that the sum she received on account of unemployment benefits is a very modest one and as such has been consumed for satisfying the applicant ’ s necessary basic living expenses, that is to say for her subsistence. 89. The national courts in deciding on unjust enrichment did not take into consideration the applicant ’ s health and economic situation. She has been suffering from a psychiatric condition since 1993 and has become incapable of working. She has been unemployed for a long period of time, since 1995. At the time her employment was terminated as a result of her employer becoming insolvent she was only two months short of qualifying for unemployment benefits until next employment or retirement under Section 23 of the Employment Act ( see paragraphs 6 and 4 0, see also mutatis mutandis Béláné Nagy, cited above, § 123). The information from the enforcement proceedings suggests that she has no bank accounts, no income of any sort, and no property of any significance. In these circumstances paying her debt even in sixty instalments would put at risk her subsistence. 90. In view of the above considerations, the Court finds that under the circumstances of the present case, the requirement imposed on the applicant to reimburse the amount of the unemployment benefits paid to her in error by the competent authority beyond the statutory maximum period entails an excessive individual burden on her. 91. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 92. The applicant complained that the national authorities had violated her right to respect for her private life as provided for in Article 8 of the Convention, which reads: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 93. The Government contested that argument. 94. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible. 95. Having regard to the fact that the arguments advanced by the parties are the same as those examined in the context of Article 1 of Protocol No. 1 to the Convention, the Court does not consider it necessary to examine this complaint separately. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 96. 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 97. The applicant claimed HRK 83, 801. 69 (about 11,150 euros (EUR) ) in respect of pecuniary damage. According to her, this figure was equivalent to the sum of HRK 19, 451. 69 (about EUR 2, 600 ) with accrued default interest from 3 August 2005 until the date of payment, and the sum of HRK 64, 350. 00 (about EUR 8,560) in respect of lost employment benefits between April 2001 and December 2010, with accrued default interest on each instalment of HRK 550 (about EUR 75) from the month when compensation had to be paid until the date of payment. She also claimed HRK 435,650.00 (about EUR 57, 70 0) in respect of non-pecuniary damage. 98. The Government contested these claims. 99. As regards pecuniary damage, it appears from the documents submitted by the parties that the applicant has not paid the amount she was ordered to pay to the Rijeka Employment Bureau, and that the enforcement proceedings are still ongoing ( see paragraphs 3 2 - 39 above ). As to the sum of HRK 64,350.00 in respect of lost employment benefits between April 2001 and December 2010, the Court finds no causal link between the amount claimed and the finding of a violation ( see also paragraph 4 5 above). It therefore rejects the claim in respect of pecuniary damage. 100. In respect of non-pecuniary damage, having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 2,6 00 in respect of non-pecuniary damage, plus any tax that may be chargeable to her. B. Costs and expenses 101. The applicant also claimed HRK 18, 906. 25 for costs and expenses incurred before the domestic courts and HRK 9, 875. 00 for those incurred before the Court. 102. The Government contested this claim. 103. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 830 for costs and expenses incurred in the proceedings before the Constitutional Court, and EUR 1,300 for those incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant. C. Default interest 104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention in the present case, finding that, given the applicant’s ill health and lack of income, the domestic authorities had violated her rights by placing an excessive individual burden on her. The Court observed in particular that the applicant, who was unemployed and suffered from ill health, had done nothing to mislead the employment office about her circumstances. The authorities themselves had made the mistake of paying her benefits for about three years longer than the law allowed. However, it had been the applicant who had alone been ordered to right the situation, including having to pay statutory interest. |
222 | Absence of an interpreter during police questioning | II. RELEVANT DOMESTIC LAW 35. The Code of Criminal Procedure in force at the relevant time did not contain any provision prohibiting access to an interpreter in police custody. 36. The Rules concerning the arrest, custody and questioning of suspects, as in force until 1 June 2005, provided in Article 12 ( d), subparagraph 6, that the police custody register had to indicate whether an interpreter was present during the interview and, if so, the interpreter ’ s name and signature was required. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION FOR LACK OF ASSISTANCE OF AN INTERPRETER IN POLICE CUSTODY 37. The applicant complained that there had been no interpreter to assist her while she was in police custody and that this had entailed a violation of her right to a fair trial within the meaning of Article 6 §§ 1 and 3 ( e) of the Convention, provisions which read as follows : “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: ... (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 38. The Government contested that argument. A. Admissibility 39. The Government argued that the applicant should have submitted her complaint to the Court within six months after the end of her police custody, given that, in their opinion, there was no effective or appropriate remedy by which she could have had her complaint examined. 40. Should the Court not agree with their argument about the lack of a remedy, the Government asked it to declare the complaint inadmissible for failure to exhaust domestic remedies, firstly because the applicant had not raised the complaint during the domestic proceedings and, secondly, because the case was still pending before the domestic courts at the time she lodged her application. 41. As to the argument that the applicant had not complied with the six-month period allegedly running from the end of her police custody, the Court noted that the use of remedies, such as an appeal on points of law, could have enabled the applicant to obtain redress for the defect which, in her submission, had vitiated the proceedings, by obtaining a ruling either that the incriminating statements made during her police custody should be excluded or that she should not be convicted. In that connection, the Court would refer to its settled case-law to the effect that, following an acquittal or the quashing of a conviction, the applicant cannot be considered a “victim” of a violation of the rights guaranteed by Article 6 of the Convention ( see Bouglamé v. Belgium ( dec. ), no. 16147/08, 2 March 2010, and the numerous references therein ). An appeal on points of law was therefore one of the remedies to be exhausted and the applicant acquired victim status only once her appeal on points of law had been dismissed and her conviction had become final. It was thus on 31 October 2006 that the six-month period began to run and not, as the Government argued, at the end of her time in police custody. 42. As to the assertion that the applicant had not submitted her complaint to the domestic courts, the Court observes that, in her appeals on points of law, she had expressly complained about the use by the Assize Court of the statement obtained without the assistance of an interpreter while she was in police custody ( see paragraphs 29 and 33 above ). 43. As to the objection that domestic remedies had not been exhausted, on the grounds that the Court of Cassation had not yet ruled on the applicant ’ s appeal at the time the application was lodged, the Court observes that the conviction has in the meantime become final and that all domestic remedies have been exhausted. It would moreover note that this was already the case on the date when notice of the application was given to the Government. 44. In conclusion, the three objections raised by the Government are unfounded and must be dismissed. 45. Furthermore, finding that no other ground for declaring the complaint inadmissible has been established and that it is not manifestly ill-founded, the Court declares it admissible. B. Merits 46. The applicant complained that she had not been assisted by an interpreter when questioned by the gendarmes while she was in their custody and argued that the statement taken in those circumstances constituted illegally obtained evidence which should therefore have been excluded by the trial court. 47. The Government argued that the applicant had not shown how the absence of an interpreter during her police custody had impaired her right to a fair trial, as when she had subsequently reiterated her statement to a judge, an interpreter had then been present. The Government further argued that the applicant had been assisted by an interpreter throughout the remainder of the proceedings. 48. Reiterating the finding in its case-law that the requirements of paragraph 3 (e) of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together ( see, for example, Valentini v. Italy ( dec. ), no. 45003/98, 18 May 2000, or Pala v. France ( dec. ), no. 33387/04, 30 January 2007). 49. The Court further reiterates that paragraph 3 (e) of Article 6 guarantees the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. This means that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court ’ s language in order to have the benefit of a fair trial ( see Luedicke, Belkacem and Koç v. Germany, 28 November 1978, § 48, Series A no. 29). Furthermore, the interpretation assistance provided should be such as to enable the accused to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events ( see Güngör v. Germany ( dec. ), no. 31540/96, 17 May 2001). 50. Furthermore, like the assistance of a lawyer, that of an interpreter should be provided from the investigation stage, unless it is demonstrated that there are compelling reasons to restrict this right ( see, to that effect, Diallo v. Sweden ( dec. ), no. 13205/07, § 25, 5 January 2010). 51. In the present case, the Court would first observe that it is not in dispute that the applicant ’ s level of knowledge of Turkish rendered necessary the assistance of an interpreter. Both the District Court and the trial court decided that she needed an interpreter. As the Government never submitted argument to the contrary, the Court finds this point established. 52. The Court further notes that, while the applicant enjoyed the assistance of an interpreter when she was examined by the judge responsible for deciding whether she should be remanded in custody, this had not been the case during her questioning by the gendarmes, when she had stated that she had found the impugned document in the prison waiting room, thus admitting that a document had indeed been found in her possession. 53. The Court has already had occasion to emphasise the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained at this stage may be decisive for the subsequent proceedings ( see, to that effect, Salduz v. Turkey [GC], no. 36391/02, § 63, ECHR 2008). It should be pointed out that an individual held in police custody enjoys a certain number of rights, such as the right to remain silent or to be assisted by a lawyer. The decision to exercise or waive such rights can only be taken if the individual concerned clearly understands the charges, so that he or she can consider what is at stake in the proceedings and assess the advisability of such a waiver. 54. The Court takes the view that, as the applicant was not able to have the questions put to her translated and was not made aware as precisely as possible of the charges against her, she was not placed in a position where she could fully assess the consequences of her alleged waiver of her right to remain silent or her right to be assisted by a lawyer and thus to benefit from the comprehensive range of services that can be performed by counsel. Accordingly, it is questionable whether the choices made by the applicant without the assistance of an interpreter were totally informed. 55. The Court finds that this initial defect thus had repercussions for other rights which, while distinct from the right alleged to have been breached, were closely related thereto and undermined the fairness of the proceedings as a whole. 56. While it is true that the applicant enjoyed the assistance of an interpreter when she was brought before a judge following her police custody, the Court is of the opinion that this fact was not such as to cure the defect which had vitiated the proceedings at their initial stage. 57. Furthermore, the Court observes that the judge apparently failed to verify the skills of that interpreter, who was simply a member of the applicant ’ s family waiting in the corridor ( see, mutatis mutandis, Cuscani v. the United Kingdom, no. 32771/96, § 38, 24 September 2002, and paragraph 19 above ). 58. Moreover, the Court notes that the impugned statement was not excluded by the trial court. Even though the conviction was based on a number of factors, it is nevertheless established that the statements obtained by the gendarmes without the assistance of an interpreter were also relied upon when the applicant was found guilty. 59. In conclusion, having regard to its consequences for the fairness of the proceedings as a whole, the failure to provide the applicant with an interpreter while she was in police custody entailed a violation of Article 6 § 3 ( e) of the Convention taken together with Article 6 § 1. II. OTHER ALLEGED VIOLATIONS 60. Relying on Article 5 of the Convention, the applicant complained about the length of her detention on remand and alleged that she did not have a remedy by which to obtain an examination of its lawfulness, with the possibility of then being released. 61. In addition, relying on Article 6 of the Convention, the applicant argued that the use by the judges, in the reasoning given for her conviction, of the statement she had given to the gendarmes, constituted a breach of her right to be presumed innocent. 62. Under Article 14 of the Convention, she also contended that she had been the victim of a violation of Convention rights on account of her ethnic origin. 63. Lastly, she argued that she did not have a domestic remedy, within the meaning of Article 13 of the Convention, by which to submit her complaints. 64. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine these allegations, the Court finds no appearance of a breach of the provisions of the Convention. 65. Accordingly, it declares these complaints inadmissible. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. 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.” 67. The applicant claimed 20, 000 euros (EUR) in respect of the non-pecuniary damage she alleged to have sustained. 68. She also claimed EUR 2, 500 for the costs and expenses she had incurred before the domestic courts, EUR 5, 075 for the cost of her representation before the Court, and EUR 298 for the translation expenses in support of which she submitted invoices. 69. The Government disputed those claims, which they found excessive, and asked the Court to reject them. 70. The Court finds that it is appropriate to award the applicant EUR 1, 500 in respect of non-pecuniary damage. 71. The Court takes the view that, in circumstances such as those of the present case, a re-trial or the reopening of the proceedings, at the request of the person concerned, represents in principle an appropriate means of redress for the violation in question ( see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). 72. 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, and having regard to the documents in its possession and its case-law, the Court finds it reasonable to award the applicant EUR 1, 300 in respect of all costs and expenses. 73. 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 (e) (right to the assistance of an interpreter) taken together with Article 6 § 1 of the Convention. It found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, the applicant had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance. |
83 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC LAW A. As to family life 76. The Constitution reads: Article 38 “The family shall be the basis of society and the State. Family, motherhood, fatherhood, and childhood shall be under the protection and care of the State. ... In the family, the rights of spouses shall be equal ... ” Article 39 “The State shall take care of families raising and bringing up children at home, and shall render them support according to the procedure established by law. ... Under-age children shall be protected by law.” 77. The relevant parts of the Law on the Fundamentals of Protection of Children ’ s Rights ( Vaiko teisių apsaugos pagrindų įstatymas ) read as follows: Article 4. General Provisions for the Protection of the Rights of the Child “Parents, other legal representatives of a child, State, municipal government and public institutions and other natural and legal persons must abide by the following provisions and principles: (1) the legal interests of the child must always and everywhere be given priority consideration; ... (4) every child shall be given the possibility to be healthy and develop normally, [both] physically and mentally, prior to his or her birth as much as afterwards, and upon birth, a child must also be guaranteed the opportunity to develop morally and to participate in life within society; ... (7) parents and other legal representatives of a child must first [and foremost] safeguard the rights of the child.” 78. The Civil Code provides that parents (the father and mother) have equal rights and duties in respect of their children, irrespective of whether the child was born to a married or unmarried couple, after divorce or judicial nullity of the marriage or separation (Article 3.156). 79. Other provisions of the Civil Code relevant to this case read as follows: Article 3.3. Principles for the legal regulation of family relations “1. In the Republic of Lithuania the legal regulation of family relations shall be based on the principles of monogamy, voluntary marriage, the equality of spouses, the priority of protecting and safeguarding the rights and interests of children, raising children in the family, the comprehensive protection of motherhood and [on the] general principles for the legal regulation of civil relations. 2. Family laws and their application must ensure the strengthening of the family and its significance in society, the mutual responsibility of family members for the preservation of the family and the education of children, the possibility for each member of the family to exercise his or her rights in an appropriate manner and protect children of a minor age from the undue influence of the other members of the family or other persons or any other such factor.” Article 3.65. Temporary protective measures “1. The court, having regard to the interests of the children of the spouses as well as the interests of one of the spouses, may make orders for temporary protective measures ... 2. The court may make the following orders for temporary protective measures: ... 7) prohibit one of the spouses from having contact with his or her minor children or appearing in certain places.” Article 3.170. Right of the separated parent to have contact with the child and be involved in the child ’ s upbringing “1. The father or mother not living with the child shall have a right to have contact with the child and be involved in the child ’ s upbringing. 2. A child whose parents are separated has the right to have regular and direct contact with both parents irrespective of where they live. 3. The father or mother living with the child shall not interfere with the other parent ’ s contact with the child or involvement in [his or her] upbringing. 4. If the parents cannot agree on the involvement of the separated father or mother in the upbringing of the child and contact, the separated parent ’ s contact and involvement in the child ’ s upbringing shall be determined by the court. 5. The separated father or mother has the right to receive information about the child from all institutions and authorities concerned with the child ’ s education, training, healthcare and protection ... Information may be refused only in cases where the child ’ s life or health is at risk from the mother or father and in the cases provided for by law. ... ” Article 3.174. Disputes over a child ’ s residence “1. Applications for the determination of a child ’ s residence may be filed by the child ’ s father or mother, as well as by the parents or guardians/caregivers of a child ’ s minor-aged parents who do not have full legal capacity. 2. The court shall resolve the dispute having regard to the interests of the child and the child ’ s wishes. The child ’ s wishes may be disregarded only if they are against [his or her] best interests....” Article 3.261. Child guardianship in public and non-governmental guardianship institutions “1. A child deprived of parental care shall be placed in a public or non-governmental child guardianship institution where there is no possibility of placing the child under guardianship in a family or a social family ... ” Article 3.264. Child guardianship in public and non-governmental guardianship institutions “1. Where a child is placed under temporary guardianship, the child ’ s guardian shall be appointed by the decision of the ... municipal administration ... on the recommendation of the childcare institution ...” Article 3.265. Place of guardianship “The place of guardianship of the child may be: 1) the guardian ’ s place of residence; ... 3) an institution of child guardianship.” 80. Other domestic law as to a child ’ s right to live with his or her natural parents, the grounds for restriction of parental authority and the institution of care and guardianship are reproduced in the judgment Z.J. v. Lithuania ( no. 60092/12, § § 68-70, 29 April 2014). B. Certain norms of civil procedure 81. The Code of Civil Procedure at the relevant time provided: Article 18. Binding force of court decisions, rulings, orders or decrees “Effective court decisions, rulings, orders or decrees are binding on the State or municipal authorities, civil servants and officials, physical and legal persons and shall be enforced throughout the entire territory of the Republic of Lithuania.” 82. As to the court ’ s role in family law cases and the transfer of children by court order, the Code of Civil Procedure reads as follows: Article 376. Role of the court “ ... 2. The court must take measures to reconcile the parties, as well as aim to protect the rights and interests of children. ... ” Article 764. Transfer of children named in a court decision “ 1. If the [judgment] debtor does not within the time - limit set by the court or the bailiff comply with a court order concerning the transfer of a child, the bailiff, having assessed the recommendations of the childcare service, the police and the psychologist, shall take a decision regarding the way the court order should be enforced ... A copy of the bailiff ’ s decision shall be sent to all parties of the proceedings and other relevant persons. 2. In implementing the court decision concerning the transfer of a child, the bailiff must carry out its duties in the presence of the [applicant] and a representative of the childcare service. To guarantee the protection of the child ’ s rights, a psychologist may be invited, at the request of any party to the civil proceedings or the childcare service, or by a decision of the bailiff. 3. If the debtor does not comply with the bailiff ’ s order for the transfer of the child, the bailiff has the right to ask the court for permission to forcibly take the child. 4. Where forcibly transferring a child, the police must remove obstacles for the enforcement of the decision for transfer, and the representatives of the childcare service shall take the child and hand him or her to the [applicant]. 5. If a court rejects the bailiff ’ s request for permission to forcibly take the child, the ruling must indicate how the child ’ s transfer will proceed from that point forward. 6. Where enforcing the decisions mentioned [herein], protection of the child ’ s rights must be guaranteed.” Article 771. Enforcement of decisions obliging the debtor to perform certain actions or stop performing them “1. If the decision obliging the debtor to perform certain actions or stop performing them, where such actions are not related to transfer of property or funds, the bailiff shall note it in writing ... ... 5. When the decision obliging the debtor to perform certain actions or stop performing them, and those actions may only be performed by the debtor personally, is not executed within the set time - limit, the bailiff shall bring the aforementioned written statement to the district court of the place of execution. The issue of non-execution is decided in a court hearing. Both the debtor and the person in whose favour the court decision to be executed has been taken [the creditor] are informed of the time and place of the hearing ... Having established that the debtor has not executed the court decision, the court may impose a fine of up to one thousand litas [EUR 290] for each delayed day in favour of the creditor and set a new time - limit for execution of the court decision. 6. If the debtor one or more times again breaches the time-limit set for execution of the court decision, the court shall apply the sanction mentioned in paragraph 5 of this Article. Payment of the fine shall not release the debtor from the obligation to perform certain actions or stop performing them ... ” 83. Article 283 § 1 ( 4 ) of the Code of Civil Procedure at the material time provided that the court could order that its decision be urgently executed in part or entirely, before deciding the appeal, if a delay in executing the court decision could cause serious harm to the party seeking the decision or could make the decision overall impossible to execute. 84. Articles 2 and 3 of the Law on Bailiffs ( Antstolių įstatymas ) states that a bailiff is someone authorised and empowered by the State to carry out the enforcement of writs of execution, make findings of fact, or carry out any other tasks provided for by law (see also Manic v. Lithuania, no. 46600/11, § 71, 13 January 2015 ). A bailiff ’ s actions or failure to act may be appealed against to the district courts (Article 510 of the Code of Civil Procedure). C. Criminal Code 85. The Criminal Code, in so far as relevant, reads: Article 163. Abuse of the Rights or Duties of Parents, Guardians, Custodians or Other Lawful Representatives of a Child “Anyone who abuses the rights of a father, mother, guardian or custodian or other lawful representative of a child by physically or mentally harassing a child, leaving him for long periods without care or by maltreating him in a similar cruel manner shall be punished by a fine or by restriction of liberty or by arrest or by deprivation of liberty of up to five years.” D. Other relevant domestic law 86. The Law on Administrative Proceedings, in so far as relevant, reads: Article 15. Cases falling within the scope of competence of the administrative courts “1. Administrative courts shall examine cases concerning: 1) the lawfulness of legal acts adopted and actions performed by the entities of State administration, as well as the lawfulness and justification of refusals by those entities to perform the actions within their competence or delay in performing such actions; 2) the lawfulness of acts passed and actions performed by the entities of municipal administration, as well as the lawfulness and justification of refusals by those entities to perform the actions within their competence or delay in performing such actions; 3) redress for damage caused by the unlawful actions of the entities of public administration (Article 6.271 of the Civil Code); ... ” III. RELEVANT INTERNATIONAL MATERIALS 87. The United Nations Convention on the Rights of the Child, ratified by Lithuania on 3 July 1995, and published in the State Gazette ( Valstybės žinios ) on 21 July 1995, contains, inter alia, the following provisions : Article 3 “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 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 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests. ... ” 88. On 25 January 1996 the Council of Europe adopted the Convention on the Exercise of Children ’ s Rights, which entered into force on 1 July 2000. To date, the Convention has been signed by twenty-eight Council of Europe Member States and ratified by twenty. Lithuania is not a party to the Convention. As concerns the decision-making process and role of judicial authorities, the Convention reads as follows: Article 3 – Right to be informed and to express his or her views in proceedings “A child considered by internal law as having sufficient understanding, in the case of proceedings before a judicial authority affecting him or her, shall be granted, and shall be entitled to request, the following rights: a. to receive all relevant information; b. to be consulted and express his or her views; c. to be informed of the possible consequences of compliance with these views and the possible consequences of any decision.” Article 6. Decision-making process “In proceedings affecting a child, the judicial authority, before taking a decision, shall: consider whether it has sufficient information at its disposal in order to take a decision in the best interests of the child and, where necessary, it shall obtain further information, in particular from the holders of parental responsibilities; in a case where the child is considered by internal law as having sufficient understanding: ensure that the child has received all relevant information; consult the child in person in appropriate cases, if necessary privately, itself or through other persons or bodies, in a manner appropriate to his or her understanding, unless this would be manifestly contrary to the best interests of the child; allow the child to express his or her views; give due weight to the views expressed by the child.” Article 7. Duty to act speedily “In proceedings affecting a child the judicial authority shall act speedily to avoid any unnecessary delay and procedures shall be available to ensure that its decisions are rapidly enforced. In urgent cases the judicial authority shall have the power, where appropriate, to take decisions which are immediately enforceable.” Article 8. Acting on own motion “In proceedings affecting a child the judicial authority shall have the power to act on its own motion in cases determined by internal law where the welfare of a child is in serious danger.” 89. On 17 November 2010 the Committee of Ministers of the Council of Europe adopted Guidelines on Child Friendly Justice. One of the fundamental principles is that all children have a right to be consulted and heard in proceedings involving or affecting them. The best interests of the children are a primary consideration for the Member States. The Guidelines also provide that children should be treated with care and sensitivity throughout any procedure or case, with special attention for their personal situation, well-being and specific needs, and with full respect for their physical and psychological integrity. This treatment should be given to them, in whichever way they have come into contact with judicial or non ‑ judicial proceedings or other interventions, and regardless of their legal status and capacity in any procedure or case. Judges should respect the right of children to be heard in all matters that affect them or at least to be heard when they are deemed to have a sufficient understanding of the matters in question. Judgments and court rulings affecting children should be duly reasoned. In all proceedings involving children, the urgency principle should be applied to provide a speedy response and protect the best interests of the child, while respecting the rule of law. In family law cases (for example, custody), courts should exercise exceptional diligence to avoid any risk of adverse consequences on the family relations. When necessary, judicial authorities should consider the possibility of taking provisional decisions. Once the judicial proceedings are over, national authorities should take all necessary steps to facilitate the execution of court decisions involving and affecting children without delay. Lastly, after judgments in highly conflictual proceedings, guidance and support should be offered to children and their families by specialised services (see point nos. 44-48, 50-54, 76 and 79). THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 90. In her application to the Court, and relying on Articles 6 § 1 and 8 of the Convention, the applicant complained, in particular, about the domestic authorities ’ decision to take her daughter into temporary care, about the fact that the return of her daughter had not yet taken place although the criminal case against her had already been terminated, and about the handling of the court proceedings regarding the return of her daughter and their overall length, notably in view of her limited opportunities to communicate with her daughter. In her observations to the Court, after the child had been actually returned to her, the applicant further complained about the belated execution of the court ’ s decision to return the child to her and the circumstances surrounding this execution. The Court will examine those complaints as submitted by the applicant. 91. The Court considers that the applicant ’ s complaints fall to be examined solely under Article 8 of the Convention, 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. The parties ’ arguments (a) The Government 92. Firstly, the Government noted that, as regards the taking of her daughter into temporary guardianship in October 2009, the applicant had failed to appeal against that administrative decision before the administrative courts, even though such a possibility was clearly provided for by Lithuanian law (see paragraph 86 above ). The Government also considered that this part of the applicant ’ s complaint was manifestly ill-founded. 93. As to the applicant ’ s complaint about the non-return of her daughter to her care, in their observations of 31 May 2012 the Government pointed out that on 17 May 2012 (see paragraph 67 above) the applicant ’ s daughter had been handed over to her following the enforcement of the Kėdainiai District Court ’ s decision of 16 December 2011. The situation complained of by the applicant had thereupon ceased to exist. The Government thus considered that the applicant could no longer claim to be the victim of an alleged violation of the Convention, and submitted that this part of the application should therefore be declared inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention. 94. Should the Court nonetheless hold that the applicant could still be considered as having victim status within the meaning of Article 34 of the Convention, the Government submitted that the applicant had failed to exhaust domestic remedies by not having addressed the domestic courts seeking the State ’ s responsibility. In particular, had she considered that the delayed execution of the Kėdainiai District Court ’ s decision of 16 December 2011 had caused her damage, she could have claimed redress under Article 6.272 of the Civil Code. In this connection, the Government also noted that the main actor in the execution of the court ’ s decision had been the bailiff. Accordingly, had the applicant been dissatisfied with the bailiff ’ s actions, she could have appealed against those decisions to a court. However, she had failed to use either of these remedies. (b) The applicant 95. The applicant admitted that she had not appealed against the October 2009 administrative decision regarding the temporary guardianship of her daughter. Nevertheless, she wished to emphasise that by the ruling of 23 December 2008 the temporary protective measures had been established and that at that time her parental rights had already been limited (see paragraphs 11 and 12 above). The applicant thus considered that any appeal against the temporary guardianship would have been futile. She also noted that despite the fact that she had not appealed against the administrative decision appointing the temporary guardian, she had taken other actions for her daughter to live with her – on 23 December 2009 she had started court proceedings regarding the child ’ s permanent place of residence (see paragraph 30 above). The applicant considered that a separate application to the court for residence had been one of the possible ways to cancel the decision to appoint a guardian for the girl. 96. As to the Government ’ s suggestion that the applicant should have started court proceedings for damages regarding her daughter ’ s non-return (see paragraph 94 above), the applicant reiterated that she had had limited financial resources and time to pursue those. Despite that, she had made claims and appealed to the courts regarding the essential issue related to her right to family life and her “goal to live with her daughter”. 2. The Court ’ s assessment 97. The Court recalls that by the Kaunas City Municipality director ’ s decision of 5 October 2009 the applicant ’ s daughter was taken into temporary guardianship (see paragraph 17 above). As correctly pointed out by the Government (see paragraph 92 in limine above), the applicant did not appeal against that decision. The Court has also held, as early as in 2003 (see, mutatis mutandis, Jankauskas v. Lithuania ( dec. ), no. 59304/00, 16 December 2003) that the administrative courts, which were created in Lithuania in 1999, are an effective remedy regarding complaints against actions of the State or municipal authorities. That being so, it cannot but find that the applicant has not exhausted the available domestic remedies in respect of her complaint concerning issuing of temporary guardianship in respect of her daughter. Accordingly, this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention. 98. The Court next turns to the Government ’ s objection that the applicant could no longer claim to be a victim of Article 8 violation on account of the fact that in May 2012 the daughter had been returned to her (see paragraphs 67 and 93 above). The Court reiterates that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 81, ECHR 2012, and the case-law cited therein ). Such an acknowledgment is absent in the present case. The Court likewise held that 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 ). In the instant case the applicant ’ s complaint is in fact that the State authorities did not effectively prevent N.V. ’ s efforts which delayed the execution of the Kėdainiai District Court ’ s judgment. Therefore, the applicant retains the status of a victim, and the Government ’ s objection must be dismissed. 99. The Court also considers that the Government ’ s remaining objections as to the applicant not having exhausted the domestic remedies (see paragraph 94 above) are intrinsically linked to the merits of her complaints about the State authorities ’ actions in the course of the court proceedings for her daughter ’ s residency ( also see paragraph 105 below ). It therefore joins these objections to the merits. 100. Lastly, the Court notes that the applicant ’ s complaints as to the State authorities ’ actions within the proceedings concerning her daughter ’ s return, including temporary protective measures, are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. The parties ’ arguments (a) The applicant 101. In her application to the Court, lodged on 2 September 2011, the applicant complained that the civil proceedings concerning the restriction of her parental rights and custody in respect of her daughter had already been pending for two years and ten months (see paragraph 11 above), although it was still the court of first instance which had been examining her case. The applicant criticised the entire handling of her case and complained that the Lithuanian authorities had not returned her daughter to her, even though the criminal charges against the applicant had been dismissed and the persons concerned [N.V.] had exhausted all legal remedies to appeal against the decisions dismissing those charges. She also submitted that, given the fact that she had had limited opportunities to communicate with her daughter during the civil proceedings, the State had had to assure that the court proceedings would be as expedient as possible. However, that had not been the case. 102. The applicant further asserted that already from the beginning of the litigation concerning her parental rights – which had been affected as early as on 23 December 2008 (see paragraph 11 above) – there had been disproportion between her right to family life and the general interest of society. In her view, as no institution had established that she had assaulted her daughter or helped others to molest her, there had been no need to impose the temporary protective measures. Pointing to the circumstances when two of the individuals connected with the alleged sexual abuse had been shot (see paragraph 16 above), the applicant asseverated that although she personally had been provided with State protection, there had been no reason why she and her daughter could not live together. 103. As to her contact with her daughter, the two had already been separated on 19 March 2008, when a settlement agreement between her and D.K. had been approved by the Vilnius City First District Court, establishing that the girl would live with her father (see paragraph 8 above). Several sets of court proceedings had then followed, but their outcome had been that the applicant and her daughter had been apart for four years, until 17 May 2012. During that period the applicant and her daughter ’ s situation had been made harder by the fact that they had had limited opportunities to communicate. Even after the temporary protective measures had been varied on 27 April 2009 (see paragraph 12 above), the applicant and her daughter could not act freely – the meetings had been supervised by the childcare authorities and had lasted for only a limited time – a couple of hours per week. What was more, some of those meetings had taken place at the home of N.V., who personally, as well as her family members, had been unwilling to permit uninhibited contact between the mother and the daughter. The applicant also submitted that a number of times she had not been allowed to enter N.V. ’ s house, especially after the Kėdainiai District Court ’ s decision of 16 December 2011. 104. In her observations to the Court, submitted on 23 July 2012, the applicant further submitted that the State had not guaranteed her rights because it had not ensured a smooth handing over of her child to her. In particular, there had been no justifiable grounds for not implementing a court order regarding the daughter ’ s return, and the return had taken place only after a delay of five months. The applicant also disputed the Government ’ s defence that the case had been extraordinary, and that the biggest burden for the execution of the court decision to hand over the girl to her mother had rested on the guardian N.V. and her supporters (see paragraphs 108 and 109 below). For the applicant, and notwithstanding N.V. ’ s failure to comply with the bailiff ’ s demands, the State authorities, especially since they had been aware of the impact the case had had on Lithuanian society and the support that N.V. had among the Lithuanian people, had retained a duty to be prepared for the execution of the court decision. In that context the applicant pointed out that three months after the Kėdainiai District Court ’ s decision, on 22 March 2012, the court had given permission for the use of force for its execution ( see paragraph 60 above ), allowing the removal of obstacles hindering the girl being taken from N.V. ’ s home. After that decision had been issued, it had still taken almost two months for the child to be handed over to the applicant (see paragraph 67 above). The applicant indicated that when the officials had finally been prepared to implement the court order, it had taken them less than an hour to finish the operation, which showed that prior to this the State authorities had been passive. In sum, unjustified reasons such as outstanding public interest in the case, the ill will of the guardian N.V., and the authorities ’ possible fear of taking action had taken priority over the applicant ’ s right to respect for her family life. 105. The applicant lastly submitted that because of the turmoil surrounding the court proceedings neither the girl nor the applicant could live a normal social life in Lithuania. They had only had one choice, to change her name and leave the country. (b) The Government 106. At the outset, the Government wished to set straight the facts of the case, since they saw the applicant ’ s grievance that she had been separated from her daughter for four years as to an extent misleading. The Government thus pointed out that by a court decision of 19 March 20 0 8 the applicant had voluntarily agreed that her child would not live with her (see paragraph 8 above). Afterwards, on 23 December 2008 temporary protective measures had been imposed on her in the case concerning the restriction of her parental rights in connection with the suspected molestation of her daughter and the applicant ’ s alleged involvement therein (see paragraph 11 above). The applicant, for her part, had started civil court proceedings for her daughter ’ s return only on 23 December 2009 (see paragraph 30 above). Afterwards, the Kėdainiai District Court decision of 16 December 2011 had created yet another legal situation when the child ’ s place of residence had been changed. However, in the situation prior to the latter decision one could not talk about the child ’ s “return” to the applicant. The Government thus considered that the applicant had mixed up all those proceedings, seemingly with the intention of making an impression that she had been separated from her daughter for a long time. 107. The Government noted that the applicant had retained the right to see her daughter throughout the period of various criminal and civil proceedings and that, taking into account the difficult situation, no excessive restrictions had been imposed on her ability to see her daughter and communicate with her. In that context the Government also pointed out that between 5 October and 17 December 2009 the applicant ’ s visits with the girl had not taken place because of the applicant. Likewise, the applicant had failed to appear at the meeting of 21 October 2009 organised by the Kaunas childcare authorities, to which she had been invited. For the Government, this meant that the applicant at that time had not shown much interest in her daughter ’ s situation. The Government also disagreed with the applicant ’ s statements that while the child had been living with her temporary guardian, she had been able to see her daughter only in an “unfriendly environment”. In contrast to what had been claimed by the applicant, and at least until the Kėdainiai District Court ’ s decision of 16 December 2011, the temporary guardian had not been present at those meetings. As a result, and with the help of the childcare specialists and psychologists, the applicant had gradually rebuilt the capacity to maintain a close relationship with her daughter. After that court decision, and notwithstanding the fact that N.V. had refused to take the girl to the meetings with the applicant in a neutral location on the pretext that the girl had not wanted to leave the house, because of the childcare authorities ’ efforts and mediation, the applicant had continued seeing her daughter at N.V. ’ s house. Those meetings had taken place between December 2011 and March 2012, and the authorities had also provided other assistance to the applicant in order to facilitate her contact with the girl. In sum, the applicant had retained access to her daughter, and, taking the difficult situation into account, no excessive restrictions had been imposed on the applicant ’ s ability to see her child and to communicate with her. 108. Turning to the question of execution of the Kėdainiai District Court ’ s decision of 16 December 2011, the Government considered that the Lithuanian authorities had taken all possible steps in order to facilitate the execution of that court decision in order to hand over the child to the applicant. Firstly, the efforts of the domestic authorities had been properly coordinated and, above all, directed at the protection of the child ’ s interests and safety. Accordingly, all possible attempts had been made to encourage execution of the court ’ s judgment in good faith. However, the authorities ’ efforts had been in a large part hindered by the lack of cooperation on the side of the girl ’ s temporary guardian N.V. 109. In that context, the Government admitted with regret that the Lithuanian institutions had been faced with an exceptional challenge when executing the court decision for the girl ’ s transfer. The sensitive subject matter at issue itself, namely the sexual abuse of a minor, had caused highly elevated public interest. The course of the criminal proceedings concerning the alleged sexual abuse of the girl and the civil proceedings concerning the restriction of the applicant ’ s parental rights and residence had been closely observed by the media. A large part of Lithuanian society had been touched by the girl ’ s story and had expressed their support towards the girl ’ s temporary guardian in various ways, including spontaneous gatherings of crowds near her house. Speeches, concerts and other events had been organised. The crowds had also declared their discontent with the Kėdainiai District Court ’ s decision of 16 December 2011, and had objected to its execution. The case had had significant repercussions, and the national authorities had thus been placed in a unique situation when seeking to execute the court ’ s decision. 110. That being so, during the execution proceedings the authorities had nevertheless given the highest priority to the interests of the child, taking into account not only her right to live with her biological family and retain ties with her mother, but also the right to physical and emotional integrity and security. For those reasons, the authorities had first tried to achieve the execution in goodwill, seeking to reduce the inevitable emotional distress for the girl, and it had only been afterwards, when it had become clear that N.V. had had no intention of giving up the girl, that the authorities had applied force in executing the court decision. The Government also pointed out that the Lithuanian institutions which had participated in the execution of the court ’ s decision had not had prior experience with enforcement in such challenging situations as the one at issue. Likewise, this had been the first time when the newly elaborated procedure of handing over a child prescribed by the new wording of Article 764 of the Code of Civil Procedure (see paragraph 82 above) had been applied. The institutions had thus sought to duly cooperate and coordinate their actions, clarify their discretion in particular situations, and analyse the experience in order to be adequately prepared for possible similar situations in the future. 111. In the light of the above, the Government considered that certain delays in the execution of the court ’ s decision could not be regarded as disproportionate interference with the applicant ’ s right to respect for her family life, especially taking into account the efforts demonstrated by the domestic authorities in the execution process and while maintaining the applicant ’ s contact with her daughter. Furthermore, the bailiff had also taken measures against N.V., who had been fined for failing to obey the court decision. The Government also stated that adequate and necessary social and psychological support had been provided to the daughter and the applicant after the child had been handed to the applicant. 112. Lastly, the Government submitted that the domestic courts had showed diligence when assessing the relevant circumstances of the case, and that there had been no undue delay. In fact, the judicial examination of the case had been hindered by the numerous appeals lodged by the applicant and especially N.V., who had appealed against almost every procedural decision in the civil case. 2. The Court ’ s assessment (a) General principles 113. The general principles on custody and contact rights were recently summarised in the case of Khusnutdinov and X. v. Russia (no. 76598/12, §§ 76 - 83, 18 December 2018) as follows: “76. The Court notes that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained. The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005, and K. and T. v. Finland [GC], no. 25702/94, § 151, ECHR 2001 ‑ VII). 77. Moreover, 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. 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 Glaser v. the United Kingdom, no. 32346/96, § 63, 19 September 2000). 78. In relation to the State ’ s obligation to implement positive measures, the Court has repeatedly held that Article 8 includes a parent ’ s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. This also applies to cases where contact and residence disputes concerning children arise between parents and/or other members of the children ’ s family (see Manic v. Lithuania, no. 46600/11, § 101, 13 January 2015, with further references). 79. In the context of both its negative and its positive obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole; in both contexts, the State enjoys a certain margin of appreciation (see Glaser, cited above, § 63). Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, primary importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII, and Płaza v. Poland, no. 18830/07, § 71, 25 January 2011). 80. It follows that the national authorities ’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with other persons may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned is always an important ingredient. Whilst national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Hokkanen, cited above, § 58; Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000 ‑ I; and Kosmopoulou v. Greece, no. 60457/00, § 45, 5 February 2004). 81. It must be borne in mind that generally the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin, cited above, § 64; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003 ‑ VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, in particular factors 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 child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, no. 47721/10, § 134, 1 August 2013 ). 82. Furthermore, while 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 for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, an applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z.J. v. Lithuania, cited above, § 100, with further references). 83. Lastly, the Court considers that in conducting its review in the context of Article 8, it may also have regard to the length of the local authority ’ s decision-making process and of any related judicial proceedings. In cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. Effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (see W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003; and Z.J. v. Lithuania, cited above, § 100). ” 114. The Court has also held that 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. In particular, when deciding on custody matters, the Court has recognised that the authorities enjoy a wide margin of appreciation. However, a stricter scrutiny is called for both of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that family relations between the parents and a young child are effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000 ‑ VIII; Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I; Sahin v. Germany [GC], no. 30943/96, § 65, ECHR 2003 ‑ VIII, and Sommerfeld v. Germany [GC], no. 31871/96, § 63, ECHR 2003 ‑ VIII (extracts) ). (b) Application to the present case 115. The Court notes, firstly, that by its very nature the tie between the applicant and her minor daughter comes within the notion of family life within the meaning of Article 8 of the Convention (see Gnahoré v. France, no. 40031/98, § 49, ECHR 2000 ‑ IX, with further references ). It must therefore be determined whether the State authorities acted in such a manner as to allow that bond to develop and took the necessary measures to reunite parent and child (see Kutzner, cited above, § 61). i. As to the period from 23 December 2009 to 16 December 2011 116. The Court observes that although it took the State authorities two years – from December 2009 to December 2011 ( see paragraphs 30 and 38 above ) – to reach a court decision that the applicant ’ s daughter should be returned to her, this had been for uncontestably objective reasons. Firstly, nearly one year had to pass until in November 2010 the Regional Court upheld the prosecutor ’ s decision to discontinue the criminal investigation against the applicant (see paragraphs 24 and 25 above). Afterwards, and also on the basis of the applicant ’ s request lodged within the civil proceedings, expert examinations had to be performed to assist the Kėdainiai District Court to determine whether it was within the best interests of the child to be returned to her mother (see paragraphs 34 and 37 above). Once the experts had produced their report in October 2011, the Kėdainiai District Court concluded the case without undue delay, within two months. That being so, the Court cannot find that there were unjustifiable delays in the proceedings which were attributable to the Lithuanian authorities. To the contrary, they appear to have dealt with the proceedings with the requisite diligence. 117. Turning to the applicant ’ s grievance that she had none or only limited opportunities to communicate with her daughter during numerous legal proceedings, the Court notes that on 23 December 2008 the Kaunas City District Court had imposed temporary protective measures (see paragraph 11 above). However, it has no reason to doubt that such measures were imposed for, what was at that time, a valid reason – a pre-trial investigation had just been opened in which the applicant was suspected of having assisted child molesters in the sexual abuse of her daughter (see paragraph 9 above; see also Schaal v. Luxembourg, no. 51773/99, § 47, 18 February 2003, and Article 9 § 1 of the Convention on the Rights of the Child, cited in paragraph 87 above ). The Lithuanian courts placed the child ’ s best interests first, as is required by Article 8 of the Convention (see, most recently, Strand Lobben and Others v. Norway [GC], no. 37283/13, § 204, 10 September 2019 ) and national law (see paragraph 77 above). 118. Even so, the contact arrangement was soon revised by the court, and as of April 2009 the applicant was permitted to see her daughter at regular intervals, in order to facilitate her and her daughter ’ s relationship – as noted by the domestic courts (see paragraphs 12 - 14 above), as far as it was possible in the circumstances of this particular case whilst the criminal proceedings against the applicant and the civil litigation concerning her daughter ’ s place of residence were still pending. This contact order was maintained until the Kėdainiai District Court ’ s decision of 16 December 2011 (see paragraphs 40 in limine, 44 in limine and 45 above). The Court thus finds that at no stage of the civil proceedings for her daughter ’ s return was the applicant prohibited from being in contact with her child (see paragraph 32 above ). More importantly, the Court notes that the applicant had not claimed that she had been unable to have contact with her daughter because of the State authorities ’ actions or failure to act. 119. As to the applicant ’ s statements that she and the girl could not act freely during their meetings, the Court notes that since 2010 the applicant was provided with a psychological consultation before meetings with her daughter and thereafter her relationship with the girl changed and became warmer, the emotional ties between the two of them were strengthened (see paragraph 40 in fine above). Likewise, on the basis of the documents submitted by the parties, the Court considers that the childcare authorities were sufficiently proactive in monitoring the situation and assisting the courts (see paragraphs 12 and 14 in fine above). Similarly, after N.V. was appointed as temporary guardian of the girl, psychological support was provided to her, having the child ’ s best interests as the primary consideration (see paragraph 33 above). 120. In sum, as the Court finds on the facts before it, the proceedings leading to the Kėdainiai District Court ’ s decision of 16 December 2011 to return the child to her mother were conducted with the requisite diligence, and the measures taken concerning the applicant ’ s separation from and contact with her daughter were based on objective reasons. ii. As to the period from 16 December 2011 to 17 May 2012 121. The Court reiterates that the applicant and her daughter ’ s reunion was ordered by the Kėdainiai District Court on 16 December 2011, which, in line with the Court ’ s case-law on the matter, also underlined that its decision had to be enforced without undue delay, in order to limit any possible harm to the applicant and her daughter ’ s relationship (see paragraphs 43 - 45 above; see also the Guidelines on Child Friendly Justice in paragraph 89 above ). It is also clear that on already the same day N.V. took measures, such as taking the girl out of school in order to keep her at home (see paragraphs 46 and 58 above), which made the authorities ’ task of reuniting the daughter and the mother more difficult. Notwithstanding this, the Court has had occasion to hold that lack of cooperation between separated parents is not a factor which can by itself exempt the authorities from their positive obligations under Article 8. It rather imposes on the authorities an obligation to take measures to reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child which, depending on their nature and seriousness, may override those of the parent (see Diamante and Pelliccioni v. San Marino, no. 32250/08, § 176, 27 September 2011, and the case-law cited therein ). The Court considers that the preceding considerations also apply to this case, where N.V. appears to have represented the interests of her brother, D.K., as she saw fit. 122. As to the bailiff ’ s alleged failure to enforce the court order for protective measures, the Court considers that this was caused by objective reasons. The first attempt to hand over the girl failed because N. V. did not take her to school (see paragraphs 46 and 56 above). The second attempt did not come to fruition because of the calamity at N.V. ’ s parents ’ home, when the bailiff was reluctant to use physical force to pull the child from her grandparents (see paragraph 62 above). The bailiff ’ s conclusion, which was based on the domestic court ’ s instruction (see paragraph 60 above) that physical force against the child was not a measure to be used in such situations and that another method of enforcement was necessary to protect the child ’ s interests, is tantamount to the Court ’ s position that any obligation to apply coercion to facilitate the reunion of a parent with a child must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, in particular the best interests of the child (see Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299 ‑ A ). Accordingly, the fact that until 23 March 2012 the authorities ’ efforts foundered does not automatically lead to the conclusion that they failed to comply with their positive obligations under Article 8 of the Convention (see G.B. v. Lithuania, no. 36137/13, § 93, 19 January 2016 ). 123. The Court also observes that subsequently the bailiff appears to have taken the most sophisticated measures – having coordinated the plan for the girl ’ s transfer with all the necessary authorities (police, psychologists, childcare specialists), under signature, and having listed the responsibility of each institution during the planned operation (see paragraphs 61, 63, 64 and 66 above). Eventually, the steps undertaken brought positive results and the girl was on 17 May 2012 reunited with the applicant (see paragraph 67 above). As noted by the Government, who have not been contradicted on this point by the applicant, psychological support was provided to the two of them afterwards (see paragraph 111 in fine above). 124. Furthermore, the Court gives weight to the fact that, when faced with resistance from N.V. (see also paragraph 46 above), the State did not remain a bystander to the situation. The bailiff thus requested that N.V. be fined for ignoring the Kėdainiai District Court ’ s decision, and that request received a serious response in the court, which acknowledged N.V. ’ s ignorance of the law and gave her a fine which could not be considered insignificant (see paragraph 57 above). She was also found to be at fault for providing the media with information about the girl ’ s inner emotional state, in breach of the child ’ s interests (see paragraph 42 above). Likewise, and although the applicant pleaded that the State had taken the public reaction which N.V. ’ s actions had caused to the applicant and her daughter light-heartedly, the Court is satisfied that a number of actions, including criminal prosecution, were pursued in respect of N.V. (see paragraphs 70 - 75 above) as well as her relatives (see paragraphs 68 and 69 above), which for the Court shows the State ’ s serious stance. In the light of these findings the Court also dismisses the Government ’ s objection that the applicant had not exhausted the domestic remedies in respect of her complaint concerning the State authorities ’ actions in the course of the court proceedings for her daughter ’ s residency (see paragraph 99 above). 125. Lastly, it is true that after the dispute between the applicant and N.V. escalated after the 16 December 2011 decision of the Kėdainiai District Court (see paragraph 46 above), the applicant was no longer able to meet her daughter in a neutral environment (see paragraph 58 above). Notwithstanding this, with the authorities ’ assistance, and at least until the unsuccessful attempt to return the girl on 23 March 2012, she could still see the child at N.V. ’ s home or that of N.V. ’ s parents, even if that environment was not without fault (see paragraphs 21, 62, 68 and 69 above). Afterwards, the authorities still continued pursuing any available avenues to enforce the applicant ’ s contact rights which could reasonably have been required in the very difficult situation at hand (see paragraph 55 above; also see Pascal v. Romania, no. 805/09, § § 85 and 88, 17 April 2012 ). The Court also notes that the childcare authorities were sufficiently proactive in monitoring the situation and also having discussed it with both the applicant and N.V. (see paragraphs 50 - 56 above; also see the Guidelines on Child Friendly Justice, as cited in paragraph 89 above). 126. Consequently, the Court finds that the domestic authorities, when executing the Kėdainiai District Court ’ s decision of 16 December 2011, again acted with the requisite diligence, this notwithstanding the fact that that decision had not been executed within the court prescribed fourteen days ’ time-limit. iii. As to the applicant ’ s participation during both periods of the proceedings regarding her parental rights 127. Even if the applicant did not voice specific complaints in this regard, the Court notes that she, in person or through her lawyers, was present at a number of hearings where the merits of her civil claim for her daughter ’ s return, including the matters regarding her contact rights with her daughter, were discussed by the domestic courts (see paragraphs 12, 13 in fine, 14, 32, 34 - 36 and 38 above ). With the benefit of legal assistance, she had the opportunity to submit requests and evidence, present her arguments and comment on the other participants ’ submissions before the courts, both in writing and orally (see Khusnutdinov and X, cited above, § 92; see also Article 9 § 2 of the Convention on the Rights of the Child, cited in paragraph 87 above). 128. That being the case, the Court cannot but conclude that the applicant was thus placed in a position enabling her to put forward all arguments in favour of her being granted custody of the girl and she also had access to all the relevant information relied on by the courts. Eventually, the case regarding her right to live with her daughter was resolved in the applicant ’ s favour (see paragraphs 48 and 49 above). In addition, the child herself was heard by the investigators and by the court ‑ appointed experts (see paragraphs 19 - 21 and 24 above), the need to respect the views of the child having been highlighted inter alia by the United Nations Children Rights ’ Committee ( on this issue see, for example, G.B. v. Lithuania, cited above, § § 65 and 105 ) as well as by Articles 3 and 6 of the Convention on the Exercise of Children ’ s Rights, which, although it has not been ratified by Lithuania, nevertheless is a useful tool for the interpretation of relevant principles ( see paragraph 88 above, and N.Ts. and Others v. Georgia, no. 71776/12, § 76, 2 February 2016 ). 129. In these circumstances, and bearing in mind that as a general rule it is for the national courts to assess the evidence before them (see Sahin and Sommerfeld, both cited above, § § 73 and 71 respectively ), the Court is satisfied that the procedural requirements implicit in Article 8 of the Convention were complied with and that the applicant was involved in the decision-making process to a degree sufficient to provide her with the requisite protection of her interests. iv. Conclusion 130. In the light of the foregoing, the Court holds that the Lithuanian authorities did not fail to discharge their positive obligation to guarantee the applicant ’ s right to respect for her family life inasmuch as this concerns her admissible complaints under Article 8 of the Convention (see paragraph 100 above). There has consequently been no violation of that provision. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention in respect of the applicant. It found in particular that the Lithuanian authorities had acted with the requisite diligence in the care proceedings: they had had first to wait for the applicant to be cleared of involvement in the alleged sexual molestation of her daughter. Once that obstacle was out of the way and the courts had examined what was in the best interests of the child they had ordered her return to the applicant. The authorities had then faced obstruction from other family members in handing the child over but had eventually successfully taken the appropriate measures to deal with what was an extremely difficult situation. |
152 | Medically-assisted procreation | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Prison Rules 19. The Secretary of State is empowered to make rules for the management of prisons by section 47 of the Prison Act 1952, the relevant parts of which provide as follows: “The Secretary of State may make rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein ...” 20. The relevant rules are the Prison Rules 1999 (SI 1999 No. 728). Rule 4 provides as follows: “Outside Contacts (1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both. (2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.” B. R (Mellor) v. Secretary of State for the Home Department [2001] 3 WLR 533 21. The Policy was challenged by a Mr Mellor, a prisoner serving a life sentence for murder. He was 29 years of age at the time his case came before the Court of Appeal with a minimum of 3 years ’ imprisonment to serve. His wife was 25 years old. At his earliest release she would have been 28. He and his wife had been refused artificial insemination facilities: it was considered that there was nothing exceptional about their case. 22. They sought leave to apply for judicial review of the Policy itself, rather than its application to their case, arguing that it was an unjustified interference with their Article 8 rights. They distinguished the Policy from that concerning conjugal visits: the latter gave rise to pragmatic (security) concerns whereas artificial insemination did not. The government argued that the Policy was justified in that (a) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family; (b) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison; and (c) it was undesirable, as a general rule, for children to be brought up in single- parent families. The High Court refused leave and the applicants appealed. 23. The Court of Appeal ( Lord Phillips delivering the main judgment) noted that the Secretary of State ’ s decision pre-dated the incorporation of the Convention into English law and continued: “It is, however, his contention that English domestic law has at all times accorded with the Convention. Nor has he challenged the appellant ’ s case that the requirements of the Convention provide a touchstone for judging the rationality of his decision and the policy pursuant to which it was reached. This is a sensible approach for what matters to the appellant is the extent of his rights today and the Secretary of State is also principally concerned with whether his policy complies with the provisions of the Convention, which now forms part of our law. In the light of this approach I propose first to consider the Strasbourg jurisprudence, then the relevant English domestic law before turning to consider whether the decision of the Secretary of State is in conflict with either. ” 24. Having examined relevant Commission jurisprudence ( no. 6564/74, Commission decision of 21 May 1975, Decisions and Reports (DR ) 2, p. 105; no. 8166/78, Commission decision of 3 October 19 78, DR 13, p. 241; Hamer v. the United Kingdom, no. 7114/75, Commission ’ s report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission ’ s report of 10 July 1980, DR 24, p. 72; and E. L. H. and P. B. H. v. the United Kingdom, nos. 32094/96 and 32568/96, Commission decision of 22 October 19 97, DR 91 -A, p. 61), Lord Phillips summarised five Convention principles he considered thereby established: “ ( i) The qualifications on the right to respect for family life that are recognised by Article 8(2) apply equally to the Article 12 rights. ( ii) Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under Article 8 and with the right to found a family under Article 12. ( iii) This restriction is ordinarily justifiable under the provisions of Article 8(2). ( iv) In exceptional circumstances it may be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a human right. ( v) There is no case which indicates that a prisoner is entitled to assert the right to found a family by the provision of semen for the purpose of artificially inseminating his wife.” 25. Lord Phillips went on to approve the reasons given to justify the restriction of artificial insemination facilities to exceptional circumstances. As to the first justification, he agreed that the deprivation of the right to conceive was part and parcel of imprisonment and, indeed, that that statement did no more than restate the Policy in that it indicated that it was a “deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children”. On the second justification, he considered that there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison. Lord Phillips agreed that public perception was a legitimate element of penal policy: “Penal sanctions are imposed, in part, to exact retribution for wrongdoing. If there were no system of penal sanctions, members of the public would be likely to take the law into their own hands. In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system. ... A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern. ... When considering the question of whether, in the ordinary course, prisoners should be accorded the facility to beget children while imprisoned I consider it legitimate to have regard to all the consequences of that particular policy option.” As regards the third justification which concerned the alleged disadvantage of single- parent families, he commented: “I consider it legitimate, and indeed desirable, that the State should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.” 26. Lord Phillips then concluded: “For those reasons [the Mellors] failed to make out [the] case that the [Policy] ... is irrational. [The Mellors] accepted that there were in this case no exceptional circumstances, and [they were] right to do so. It follows that the question of whether each of the six general considerations set out in [the Secretary of State ’ s ] letter is one to which it is rational to have regard, when looking for exceptional circumstances, does not arise. I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether. For these reasons ... the refusal to permit the appellant the facilities to provide semen for the artificial insemination of his wife was neither in breach of the Convention, unlawful nor irrational. It follows that I would dismiss the appeal.” C. Procedure for artificial insemination in prisons 27. Responsibility for making artificial insemination arrangements is with the health - care department in the relevant prison in consultation with the local primary care trust. Since the level of health - care provision varies from prison to prison, it will therefore be a matter for local decision as to whether the collection of sperm would be overseen by staff at the prison or whether it would be necessary for an outside professional to attend for this purpose. The prisoner would be expected to meet any costs incurred. D. The objectives of a prison sentence 28. Criminologists have referred to the various functions traditionally assigned to punishment, including retribution, prevention, protection of the public and rehabilitation. However, in recent years there has been a trend towards placing more emphasis on rehabilitation, as demonstrated notably by the Council of Europe ’ s legal instruments. While rehabilitation was recognised as a means of preventing recidivism, more recently and more positively it constitutes rather the idea of re-socialisation through the fostering of personal responsibility. This objective is reinforced by the development of the “progression principle”: in the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release. 1. Relevant international human rights ’ instruments 29. Article 10(3) of the International Covenant on Civil and Political Rights (“ the ICCPR”) provides that the “ penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ”. The General Comment of the Human Rights Committee on Article 10 further states that “ no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner ”. 30. The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) contains specific provisions on sentenced prisoners, including the following guiding principles: “ 57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation. 58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law- abiding and self-supporting life. 59. To this end, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners. ” 2. European Prison Rules 1987 and 2006 31. 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 those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. The 1987 version of the European Prison Rules (“the 1987 Rules”) notes, as its third basic principle, that : “ 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. ” The latest version of those Rules adopted in 2006 (“the 2006 Rules”) replaces this above-cited principle with three principles: “ Rule 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. ... Rule 5 : Life in prison shall approximate as closely as possible the positive aspects of life in the community. Rule 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 – “ the CDPC ” ) noted 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 : in fact restrictions should be as few as possible. Rule 5, the commentary observes, 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 ”. 32. The first section of Part VIII of the 2006 Rules is entitled “ Objective of the regime for sentenced prisoners ” and provides, inter alia : “ 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.” In these respects, the CDPC commentary explains that Rule 102: “ ... states the objectives of the regime for prisoners in simple, positive terms. The emphasis is on measures and programmes for sentenced prisoners that will encourage and develop individual responsibility rather than focussing narrowly on the prevention of recidivism. ... The new Rule is in line with the requirements of key international instruments including Article 10(3) of the [ICCPR], ... However, unlike the ICCPR, the formulation here deliberately avoids the use of the term, “rehabilitation”, which carries with it the connotation of forced treatment. Instead, it highlights the importance of providing sentenced prisoners, who often come from socially deprived backgrounds, the opportunity to develop in a way that will enable them to choose to lead law-abiding lives. In this regard Rule 102 follows the same approach as Rule 58 of the United Nations Standard Minimum Rules for the Treatment of Prisoners.” 33. Rule 105.1 of the 2006 Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime. Rule 106.1 provides that a systematic programme of education, with the objective of improving prisoners ’ overall level of education, as well as the prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. Finally, Rule 107.1 requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law-abiding life in the community. 34. The reason for the evolution towards the 2006 Rules can be understood through two Committee of Ministers recommendations, both of which address the rehabilitative dimension of prison sentences. 35. The preamble to Recommendation (2003)23 on the management by prison administrations of life- sentence and other long-term prisoners provides that: “ ... the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security, good order and discipline in penal institutions, on the one hand, and providing prisoners with decent living conditions, active regimes and constructive preparations for release, on the other; ” The aims of the management of long-term prisoners in paragraph 2 of the Recommendation included the following: “– to ensure that prisons are safe and secure places for these prisoners ...; – to counteract the damaging effects of life and long-term imprisonment; – to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law-abiding life following their release.” The recommendation also outlined five linked principles (paragraphs 3 ‑ 8) for the management of long -term prisoners: – account to be taken of the personal characteristics of prisoners (individualisation principle); – prison life to be arranged so as to approximate as closely as possible to the realities of life in the community ( normalisation principle ); – the opportunity to be accorded to exercise personal responsibility in daily prison life ( responsibility principle); – a clear distinction should be made between the risks posed by life and long - term prisoners to themselves, to the external community, to other prisoners and to those working or visiting the prison ( security and safety principle ); – prisoners should not be segregated on the basis of their sentence ( non ‑ segregation principle ); and – the planning of an individual prisoner ’ s long -term sentence should aim at securing progressive movement through the prison system ( progression principle ). The Recommendation also specifies (at paragraph 10) use of the progression principle to ensure progressive movement through the prison system “ from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community ”. There should also be participation in prison activities that “increase the chances of a successful resettlement after release ” and conditions and supervision measures that are “ conducive to a law-abiding life and adjustment in the community after conditional release ”. 36. The second relevant Committee of Ministers ’ recommendation is Recommendation (2003)22 on conditional release (parole). The fifth paragraph of the preamble considers that “research has shown that detention often has adverse effects and fails to rehabilitate offenders ”. The Recommendation outlines (paragraph 8) the following measures to reduce recidivism, by the imposition of individualised conditions such as: “– the payment of compensation or the making of reparation to victims; – entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime; – working or following some other approved occupational activity, for instance, education or vocational training; – participation in personal development programmes; and – a prohibition on residing in, or visiting, certain places. ” THE LAW I. ALLEGED VIOLATION OF ARTICLES 8 AND 12 OF THE CONVENTION 37. The applicants complained about the refusal of artificial insemination facilities, arguing that that refusal breached their right to respect for their private and family life guaranteed by Article 8. The relevant parts of that Article 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.” 38. They also complained that that refusal breached their right to found a family under Article 12 of the Convention, which reads as follows: “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of that right.” A. The Chamber judgment 39. While the Chamber confirmed that persons continued to enjoy all Convention rights following conviction except the right to liberty, it also noted that any prison sentence has some effect on the normal incidents of liberty and inevitably entailed limitations and controls on the exercise of Convention rights. The fact of such control was not, in principle, incompatible with the Convention but the key issue was whether the nature and extent of that control was compatible. 40. As to whether the impugned restriction constituted an interference with the applicants ’ right to respect for their private and family lives (the State ’ s negative obligations) or a failure by the State to fulfil a positive obligation in those respects, the Chamber considered that the impugned restriction concerned the State ’ s refusal to take steps to allow something not already an existing general entitlement. Accordingly, the case concerned a complaint about the State ’ s failure to fulfil a positive obligation to secure the applicants ’ rights. 41. The requirements of the notion of “respect” for private and family life in Article 8 were not clear cut, especially as far as the positive obligations inherent in that concept were concerned, and varied considerably from case to case having regard notably to the diversity of situations obtaining in Contracting States and the choices which had to be made in terms of a State ’ s priorities and resources. These considerations were of particular relevance in the present case, where the issues raised touched on an area where there was little consensus amongst the member States of the Council of Europe. Accordingly, this was an area in which the Contracting States enjoyed a wide margin of appreciation. 42. As to the fair balance that had to be struck between the interests of the community and those of the individual in determining the existence and scope of any positive obligation, the Chamber first examined the Policy in general. It considered its two principal aims to be legitimate: the maintenance of public confidence in the penal system and the welfare of any child conceived and, therefore, the general interests of society as a whole. The Chamber attached particular importance to the fact that it did not operate as a blanket ban but rather allowed consideration of the circumstances of each application for artificial insemination facilities on the basis of domestic criteria considered to be neither arbitrary nor unreasonable and which related to the underlying legitimate aims of the Policy. The Chamber rejected the suggestion that domestic consideration was merely theoretical or illusory, as the unchallenged evidence was that artificial insemination facilities had been granted in certain cases in the past. 43. Finally, and as to the application of the Policy in the applicants ’ case, the Chamber had regard to the difficult situation in which the applicants found themselves. However it noted that careful consideration had been given by the Secretary of State to their circumstances, that the decision had then been examined in detail by the High Court and the Court of Appeal, and that those courts had found that not only was the Policy rational and lawful but that its application in their circumstances was neither unreasonable nor disproportionate. 44. Having regard to the wide margin of appreciation afforded to the national authorities, the Chamber went on to find that it had not been shown that the decision to refuse the applicants facilities for artificial insemination was arbitrary or unreasonable or that it had failed to strike a fair balance between the competing interests so that there was no appearance of a failure to respect the applicants ’ rights to their private and family life and, consequently, no violation of Article 8 of the Convention. 45. For the same reasons, the Chamber found that there had been equally no violation of Article 12 of the Convention. B. The applicants ’ submissions 1. Article 8 of the Convention 46. The applicants disputed the reasoning and conclusions of the Chamber, relying rather on the dissenting opinions of Judges Casadevall, Garlicki and Borrego Borrego. The jurisprudence cited by the Government was mainly that of the former Commission, and was neither indicative of current trends nor referred directly to the point. Since the matter was free of precedent, the Grand Chamber was free to rule. 47. They noted that the Government had, before the Chamber and initially before the Grand Chamber, maintained that the aim of the restriction was punishment. If that was indeed the aim, it did not make sense to admit of any exceptions to the Policy: logically the Policy should not have any application to, for example, post-tariff prisoners detained on the basis of future risk – but it did. The Policy thereby discriminated between a life- sentence prisoner admitted to open conditions and those who were not so admitted; and there was no link between the offence and the punishment: while the refusal of facilities for artificial insemination to a person convicted of offences against children could be coherent, the broad refusal apart from in exceptional cases was arbitrary. 48. However, before the Grand Chamber, the Government mainly emphasised that the Policy was a necessary consequence of imprisonment: apart from being a highly subjective view, refusing artificial insemination facilities was not consequential to detention as there were simply no security or other physical or financial barriers. The Chamber ’ s failure to deal with both of those issues undermined its judgment. 49. This punitive aim, implying as it did that prisoners ’ fundamental rights were the exception rather than the norm, was not compatible with the Convention. Only the right to liberty was automatically removed by a sentence of imprisonment. A State had to justify the limitation of any other rights. The starting- point of the Policy was therefore wrong and should be reversed: the Policy should be that prisoners had a right to procreate unless there were compelling reasons against. This inversed structure prevented any real assessment of each individual case : it was necessary to show that, but for artificial insemination, conception would be impossible and, thereafter, exceptional circumstances had to be demonstrated. The odds were thereby so stacked against the grant of facilities that there was no real individual assessment and the result was a foregone conclusion so that the Policy amounted to a blanket ban. 50. The applicants maintained that the burden placed on the State by the requested facilities was so minimal (allowing something to take place with minimal regulation) that the distinction between positive and negative obligations had no useful application. If one had to choose, they argued that a refusal of artificial insemination facilities constituted an interference with a right to beget children (negative obligation). The suggestion that it had to be analysed as a positive obligation presupposed that the aim of imprisonment and of the Policy was punishment so that, as noted above, one lost one ’ s fundamental rights (including the right to beget children) on imprisonment as part of that punishment. Once it was accepted that a prisoner retained his Convention rights on imprisonment and was simply requesting a procedure to facilitate one of those rights, that request had to be analysed in the negative obligation context. Even if an onerous burden on the State could be analysed in the positive obligation context, there was evidently none and the Government did not argue that there was: the applicants would have paid any costs and there was no burden on security or facilities except for access to the prison by an approved visitor to take away the sample. 51. As to the margin of appreciation to be applied and the trend towards conjugal visits, the applicants pointed out that they were asking for something less onerous and, if there was no consensus about artificial insemination facilities, this was because such facilities were not necessary in those countries where conjugal visits were granted. The Court could not hide behind the margin it felt should be accorded in the present case. On the contrary, the refusal was based on a Policy which had never been subjected to parliamentary consideration and which allowed for no real proportionality examination domestically: the margin of appreciation had no role to play in such circumstances. Rather, this Court had to step into the shoes of the domestic decision-makers and make its own determination of where the balance of interests lay. 52. As to the considerable justification necessary for the refusal of artificial insemination facilities, the applicants maintained that neither the Policy, nor its application in their case, was adequate. 53. The punitive aim was, for reasons noted above, not coherent or logical. As regards the argument that the inability to beget children was a direct consequence of imprisonment, the applicants argued above that the burden on the State would be minimal. 54. The social factors (interests of the putative child and of society) said to underlie the Policy were not contemplated by the second paragraph of Article 8. The concept of the wider public interest was vague, ill-defined and there was, in any event, no evidence that providing the requested facilities would undermine public confidence in the penal system. The suggestion that the best interests of the child were relevant to the grant of facilities was offensive, inappropriate, paternalistic and unconvincing: it was the thin edge of the wedge as regards judging who should become parents and who should be born (Codd, “ Regulating Reproduction: Prisoners ’ Families, Artificial Insemination and Human Rights ” [2006] EHRLR 1); it was inconsistent with the principle of rehabilitation; it was unconvincing and injurious to assume that being raised by a single parent was necessarily not in the child ’ s best interests; and the interests of the child as a justification was specious as it suggested that the only way to protect that child ’ s interest was to ensure it was never born. These arguments were also insulting to single parents and, indeed, against domestic legal developments which minimised this factor in its jurisprudence in other non-prisoner artificial insemination cases ( R v. Blood [1997] 2 WLR 806 and the Human Fertilisation and Embryology (Deceased Fathers) Act 2003). This effectively put the burden on the parent to prove that he or she could be a good parent (including financially). In any event, the domestic body competent to make decisions regarding human fertilisation was the Human Fertilisation and Embryology Authority which should have been competent to determine if the applicants were suitable candidates for artificial insemination. 55. As to the application of the Policy to them, the applicants underlined that a refusal of artificial insemination facilities would extinguish their right to found a family (given the first applicant ’ s sentence and the second applicant ’ s age). They disputed the Secretary of State ’ s conclusion that there was insufficient financial provision for any child conceived: the second applicant would not be dependent on State benefits (she owned a property worth 200,000 pounds sterling (GBP), was following a course in counselling and, on qualification, would be able to command an hourly rate of GBP 30 ). It was unfair to state that their relationship had not been tested: the strength of any relationship (prisoner or other) was uncertain, there was no link between imprisonment and dissolution of relationships and, indeed, the first applicant ’ s imprisonment had not weakened their relationship. In any event, this latter argument was circuitous as it could automatically negate any request for artificial insemination facilities from such long-term prisoners. It was equally unjust and circular to argue that the first applicant would be initially absent: long- term absence was a necessary starting- point to apply for the requested facilities (artificial insemination being the only means of conception ) but at the same time it meant artificial insemination could not be granted (given the consequent separation from any child conceived). It did not make sense that their marriage was accepted as rehabilitative and to be supported by the system but that the right to procreate was not. 56. Finally, even if the Policy had some application, in the present case unjustifiably, to the first applicant, the same could not be said of the second applicant who was not in prison, a point with which the Court of Appeal, the Government and the Chamber had failed to grapple. She initially maintained that, since she was not a prisoner, the Policy could have no application to her so there were no competing rights which could override hers. However, before the Grand Chamber she accepted that her position could not be considered entirely independently of the first applicant ’ s and that her rights could not trump all others: however she maintained that she should have the right to beget a child with her husband unless there were exceptional reasons against that ( for example, if the father was a convicted child murderer). However she was prevented from doing so by a blanket and unconvincing Policy, which had even less relevance to her as a non- prisoner. The extinguishment of her Article 8 rights required a particularly robust justification. 2. Article 12 of the Convention 57. Whereas the applicants had accepted before the Chamber that a conclusion of no violation under Article 8 would lead to the same conclusion under Article 12 of the Convention, they maintained before the Grand Chamber that the complaints under Articles 8 and 12 were separate and should be examined as such. C. The Government ’ s submissions 1. Article 8 of the Convention 58. The Government relied on the Chamber ’ s judgment and argued, for the reasons given in that judgment and by the Court of Appeal, that there had been no violation of Article 8 of the Convention. While the Chamber recognised the “well established” principle that, liberty apart, prisoners continued to enjoy all Convention rights including the right to respect for private and family life ( see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX ), it had also accepted that imprisonment inevitably and necessarily involved some limitation on an individual ’ s rights. The Chamber had also accepted that the case concerned the fulfilment of a positive obligation to which a wide margin of appreciation applied and that, in the overall balancing of individual and public interests required, the public legitimate aims were the maintenance of public confidence in the penal system and the interests of any child conceived and, thus, those of society as a whole. The Policy, and its application in the applicants ’ case, was not disproportionate to those aims. 59. The Chamber judgment was consistent with the Court ’ s case-law ( see, notably, Golder v. the United Kingdom, 21 February 1975, § 45, Series A no. 18) and with that of the Commission (referred to by the Court of Appeal – see paragraph 24 above – in the above- mentioned Mellor case ). The Chamber judgment and that of the Court of Appeal in the above- mentioned Mellor case were also consistent. Finally, the Chamber judgment mirrored the justification given by the Court of Appeal for the Policy and its application in the present case. 60. The Government further maintained that the Policy was consistent with the Convention. It was not a blanket policy but one that enabled the examination of the merits of each case taking into account Convention principles. The statistics demonstrated that the individual assessment was genuine: 28 applications for artificial insemination facilities had been made since 1996, 12 were not pursued, 1 was withdrawn as the relationship had broken down, 1 applicant was released on parole and 2 were pending. Of the remaining 12 applications, 3 were granted and 9 were refused. The Policy ’ s justification was to be found in three principles: losing the opportunity to beget children was part and parcel of the deprivation of liberty and an ordinary consequence of imprisonment; public confidence in the prison system were to be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners to conceive children (in that latter context, the nature and gravity of the crime was relevant); and the inevitable absence of one parent, including that parent ’ s financial and other support, for a long period would have negative consequences for the child and for society as a whole. This latter point was indeed a complex and controversial one, underlining why the State authorities were best placed to make this assessment. It was legitimate that the State considered implications for any children conceived so that one of the aims of the Policy was to limit the grant of artificial insemination facilities to those who could reasonably be expected to be released into a stable family setting and play a parental role. Indeed, the State had an obligation to ensure effective protection and the moral and material welfare of children. 61. Accordingly, the starting- point was that artificial insemination facilities would be granted in exceptional circumstances, namely when its refusal would prevent the founding of a family altogether and, thereafter, the authorities would take into account other factors determinative of exceptionality. That starting- point was, in the Government ’ s view, a reasonable one. It would be frequently the case that the refusal of artificial insemination facilities would not affect rights guaranteed by Article 8. This would be the case, for example, where a child was conceived in whose life the father would, as a consequence of his imprisonment, have no real involvement, the mere right to procreate not being a Convention right. It would only be in unusual circumstances that the duration of imprisonment would, without artificial insemination, prevent a prisoner from having children after his release. While the Government recognised that rehabilitation was a fundamental and important aspect of imprisonment, the Policy took account of all relevant elements. 62. Moreover, the Policy was correctly applied in the present case, the authorities having identified the relevant factors and struck a fair balance. That the applicants would not otherwise be able to conceive was outweighed by the reasons relied upon by the Secretary of State: the lack of an established relationship; the first applicant ’ s long absence from the life of any child; insufficient material provision foreseen for the child and little by way of a support network for the second applicant; and legitimate public concern that the punitive and deterrent elements of a sentence would be circumvented if the first applicant (convicted of a violent murder) was allowed to father a child. The interests taken into account included those of the second applicant, including her wish to have a child with the first applicant: however, the fact was that her position was linked to that of the first applicant and, if her interests were to be the decisive factor, the State would be left with no discretion whatsoever. 63. Finally, the Government maintained that they should be afforded a wide margin of appreciation – the case involving as it did a claim that the State should take positive steps to circumvent the otherwise inevitable consequences of imprisonment to assist the parties to conceive – in an area of social policy where difficult choices had to be made between the rights of an individual and the needs of society. As explained above, this was not a blanket policy and there did not appear to be any European consensus in favour of the provision of facilities for artificial insemination of prisoners. 2. Article 12 of the Convention 64. The Government relied on the Chamber judgment and maintained that there was no violation of Article 8 so that there could equally be no violation of Article 12 of the Convention. D. The Court ’ s assessment of the complaint under Article 8 of the Convention 1. Applicability of Article 8 65. The restriction in issue in the present case concerned the refusal to the applicants of facilities for artificial insemination. The parties did not dispute the applicability of Article 8, although before the Grand Chamber the Government appeared to suggest that Article 8 might not apply in certain circumstances: where, for example, a prisoner ’ s sentence was so long that there was no expectation of ever “taking part” in the life of any child conceived and Article 8 did not guarantee a right to procreate. 66. The Court considers that Article 8 is applicable to the applicants ’ complaints in that the refusal of artificial insemination facilities concerned their private and family lives, which notions incorporate the right to respect for their decision to become genetic parents (see E.L.H. and P.B.H. v. the United Kingdom, nos. 32094/96 and 3256 8/96, Commission decision of 22 October 1997, DR 91-A, p. 61; Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001-XI; Aliev v. Ukraine, no. 41220/98, § 187- 89, 29 April 2003; and Evans v. the United Kingdom [GC], no. 6339/05, § 71 ‑ 72, ECHR 2007 - I ). 2. Relevant general principles 67. The Court notes the above- mentioned Hirst judgment, which concerned a legislative restriction on prisoners ’ right to vote: “69. In this case, the Court would begin by underlining 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. For example, prisoners may not be ill-treated, subjected to inhuman or degrading punishment or conditions contrary to Article 3 of the Convention (see, among many authorities, Kalashnikov v. Russia, no. 47095/99, ECHR 2002 ‑ VI; Van der Ven v. the Netherlands, no. 50901/99, ECHR 2003 ‑ II); they continue to enjoy the right to respect for family life ( Ploski v. Poland, no. 26761/95, judgment of 12 November 2002; X. v. the United Kingdom, no. 9054/80, Commission decision of 8 October 1982, DR 30, p. 113), the right to freedom of expression ( Yankov v. Bulgaria, no. 39084/97, §§ 126-145, ECHR 2003 ‑ XII, T. v. the United Kingdom, no. 8231/78, Commission report of 12 October 1983, DR 49, p. 5, §§ 44-84), the right to practise their religion ( Poltoratskiy v. Ukraine, no. 38812/97, §§ 167-171, ECHR 2003 ‑ V ), the right of effective access to a lawyer or to court for the purposes of Article 6 ( Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A, no. 80; Golder v. the United Kingdom, judgment of 21 February 1975, Series A, no. 18), the right to respect for correspondence ( Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61) and the right to marry ( Hamer v. the United Kingdom, no. 7114/75, Commission report of 13 December 1979, DR 24, p. 5; Draper v. the United Kingdom, no. 8186/78, Commission report of 10 July 1980, DR 24, p. 72). Any restrictions on these other rights require to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see, for example, Silver, cited above, §§ 99-105, where broad restrictions on the right of prisoners to correspond fell foul of Article 8 but stopping of specific letters, containing threats or other objectionable references were justifiable in the interests of the prevention of disorder or crime). 70. There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion. 71. This standard of tolerance does not prevent a democratic society from taking steps to protect itself against activities intended to destroy the rights or freedoms set forth in the Convention. Article 3 of Protocol No. 1, which enshrines the individual ’ s capacity to influence the composition of the law-making power, does not therefore exclude that restrictions on electoral rights are imposed on an individual who has, for example, seriously abused a public position or whose conduct threatened to undermine the rule of law or democratic foundations (see, for example, no. 6573/74, cited above; and, mutatis mutandis, Glimmerveen and Hagenbeek v. the Netherlands, applications nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, DR 18, p. 187, where the Commission declared inadmissible two applications concerning the refusal to allow the applicants, who were the leaders of a proscribed organisation with racist and xenophobic traits, to stand for election). The severe measure of disenfranchisement must, however, not be undertaken lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. ... ” 68. 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 (§ 27 of the Chamber judgment) or (as accepted by the applicants before the Grand Chamber) from an adequate link between the restriction and the circumstances of the prisoner in question. However, it cannot be based solely on what would offend public opinion. 3. Negative or positive obligations 69. The parties disagreed as to whether the refusal of the requested facilities constituted an interference with the applicants ’ existing right to beget a child (to be analysed in the context of the State ’ s negative obligations) or a failure by the State to grant a right which did not previously exist (an alleged positive obligation). The Chamber considered that the applicants ’ complaints fell to be analysed as a positive obligation. 70. The Court observes that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance to be struck between the competing interests ( see Odièvre v. France [GC], no. 42326/98, § 40, ECHR 2003 ‑ III, and Evans, cited above, § 75). 71. The Court does not consider it necessary to decide whether it would be more appropriate to analyse the case as one concerning a positive or a negative obligation since it is of the view that the core issue in the present case (see paragraphs 7 7 - 8 5 below) is precisely whether a fair balance was struck between the competing public and private interests involved. 4. The conflicting individual and public interests 72. As to the applicants ’ interests, it was accepted domestically that artificial insemination remained the only realistic hope of the applicants, a couple since 1999 and married since 2001, of having a child together given the second applicant ’ s age and the first applicant ’ s release date. The Court considers it evident that the matter was of vital importance to the applicants. 73. The Government have cited three justifications for the Policy. 74. Before the Grand Chamber they first relied on the suggestion that losing the opportunity to beget children was an inevitable and necessary consequence of imprisonment. Whilst the inability to beget a child might be a consequence of imprisonment, it is not an inevitable one, it not being suggested that the grant of artificial insemination facilities would involve any security issues or impose any significant administrative or financial demands on the State. 75. Secondly, before the Grand Chamber the Government appeared to maintain, although did not emphasise, another justification for the Policy, namely that public confidence in the prison system would be undermined if the punitive and deterrent elements of a sentence would be circumvented by allowing prisoners guilty of certain serious offences to conceive children. The Court, as the Chamber, reiterates that there is no place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic forfeiture of rights by prisoners based purely on what might offend public opinion ( see Hirst, cited above, § 70). However, the Court could accept, as did the Chamber, that the maintaining of public confidence in the penal system has a role to play in the development of penal policy. The Government also appeared to maintain that the restriction, in itself, contributed to the overall punitive objective of imprisonment. However, and while accepting that punishment remains one of the aims of imprisonment, the Court would also underline the evolution in European penal policy towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence (see paragraphs 28- 36 above). 76. Thirdly, the Government argued that the absence of a parent for a long period would have a negative impact on any child conceived and, consequently, on society as a whole. The Court is prepared to accept as legitimate for the purposes of the second paragraph of Article 8 that the authorities, when developing and applying the Policy, should concern themselves as a matter of principle with the welfare of any child: conception of a child was the very object of the exercise. Moreover, the State has a positive obligation to ensure the effective protection of children ( see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III; Osman v. the United Kingdom, 28 October 1998, § 115- 16, Reports 1998 ‑ VIII; and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V ). However, that cannot go so far as to prevent parents who so wish from attempting to conceive a child in circumstances like those of the present case, especially as the second applicant was at liberty and could have taken care of any child conceived until such time as her husband was released. 5. Balancing the conflicting interests and the margin of appreciation 77. Since the national authorities make the initial assessment as to where the fair balance lies in a case before a final evaluation by this Court, a certain margin of appreciation is, in principle, accorded by this Court to those authorities as regards that assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the activities restricted and the aims pursued by the restrictions ( see Smith and Grady v. the United Kingdom, nos. 33 985/96 and 33986/96, § 88, ECHR 1999 ‑ VI ). 78. Accordingly, where a particularly important facet of an individual ’ s existence or identity is at stake (such as the choice to become a genetic parent), the margin of appreciation accorded to a State will in general be restricted. Where, however, there is no consensus within the member States of the Council of Europe either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy : the authorities ’ direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest. In such a case, the Court would generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation”. There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights ( see Evans, cited above, § 77). 79. Importantly, in its Hirst judgment, the Court commented that while there was no European consensus on the point so that a wide margin of appreciation applied, it was not all-embracing. It found that neither the legislature nor the judiciary had sought to weigh the competing interests or assess the proportionality of the relevant restriction on prisoners. That restriction was considered to be “a blunt instrument” which indiscriminately stripped a significant category of prisoners of their Convention rights and it imposed a blanket and automatic restriction on all convicted prisoners irrespective of the length of their sentence, the nature or gravity of their offence or of their individual circumstances. The Court continued in Hirst ( § 82): “Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.” 80. In the present case, the parties disputed the breadth of the margin of appreciation to be accorded to the authorities. The applicants suggested that the margin had no role to play since the Policy had never been subjected to parliamentary scrutiny and allowed for no real proportionality examination. The Government maintained that a wide margin of appreciation applied given the positive obligation context, since the Policy was not a blanket one and since there was no European consensus on the subject. 81. The Court notes, as to the European consensus argument, that the Chamber established that more than half of the Contracting States allow for conjugal visits for prisoners (subject to a variety of different restrictions), a measure which could be seen as obviating the need for the authorities to provide additional facilities for artificial insemination. However, while the Court has expressed its approval for the evolution in several European countries towards conjugal visits, it has not yet interpreted the Convention as requiring Contracting States to make provision for such visits (see Aliev, cited above, § 188). Accordingly, this is an area in which the Contracting States could enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. 82. However, and even assuming that the judgment of the Court of Appeal in the Mellor case amounted to judicial consideration of the Policy under Article 8 ( despite its pre-incorporation and judicial review context, see paragraphs 23-26 above), the Court considers that the Policy as structured effectively excluded any real weighing of the competing individual and public interests, and prevented the required assessment of the proportionality of a restriction, in any individual case. In particular, and having regard to the judgment of Lord Phillips in the Mellor case and of Auld LJ in the present case, the Policy placed an inordinately high “exceptionality” burden on the applicants when requesting artificial insemination facilities ( see paragraphs 13, 15-17 and 23-26 above). They had to demonstrate, in the first place, as a condition precedent to the application of the Policy, that the deprivation of artificial insemination facilities might prevent conception altogether (the “starting- point”). Secondly, and of even greater significance, they had to go on to demonstrate that the circumstances of their case were “exceptional” within the meaning of the remaining criteria of the Policy ( the “ finishing- point”). The Court considers that even if the applicants ’ Article 8 complaint was before the Secretary of State and the Court of Appeal, the Policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the Convention ( see, mutatis mutandis, Smith and Grady, cited above, § 138 ). 83. In addition, there is no evidence that when fixing the Policy the Secretary of State sought to weigh the relevant competing individual and public interests or assess the proportionality of the restriction. Further, since the Policy was not embodied in primary legislation, the various competing interests were never weighed, nor issues of proportionality ever assessed, by Parliament (see Hirst, § 79, and Evans, §§ 86-89, both cited above ). Indeed, the Policy was adopted, as noted in the judgment of the Court of Appeal in the Mellor case ( see paragraph 23 above), prior to the incorporation of the Convention into domestic law. 84. The Policy may not amount to a blanket ban such as was in issue in the Hirst case since in principle any prisoner could apply and, as demonstrated by the statistics submitted by the Government, three couples did so successfully. Whatever the precise reason for the dearth of applications for such facilities and the refusal of the majority of the few requests maintained, the Court does not consider that the statistics provided by the Government undermine the above finding that the Policy did not permit the required proportionality assessment in an individual case. Neither was it persuasive to argue, as the Government did, that the starting- point of exceptionality was reasonable since only a few persons would be affected, implying as it did the possibility of justifying the restriction of the applicants ’ Convention rights by the minimal number of persons adversely affected. 85. The Court therefore finds that the absence of such an assessment as regards a matter of significant importance for the applicants (see paragraph 7 2 above ) must be seen as falling outside any acceptable margin of appreciation so that a fair balance was not struck between the competing public and private interests involved. There has, accordingly, been a violation of Article 8 of the Convention. E. The Court ’ s assessment of the complaint under Article 12 of the Convention 86. The Court considers, as did the Chamber, that no separate issue arises under Article 12 of the Convention and that it is not therefore necessary also to examine the applicants ’ complaint under this provision ( see E.L.H. and P.B.H. v. the United Kingdom, cited above, and Boso v. Italy (dec.), no. 50490/99, ECHR 2002- VII). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 87. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 88. The applicants requested a declaration that the Policy concerning facilities in prisons for artificial insemination was contrary to the Convention and, further, that the Court direct or request the respondent State to give urgent consideration to a renewed request for artificial insemination facilities. 89. The Court ’ s function is, in principle, to rule on the compatibility with the Convention of the existing measures and it does not consider it appropriate in the present case to issue the requested direction ( see Hirst, cited above, § 83). A. Non- pecuniary damage 90. The applicants sought compensation as regards the distress suffered by them having regard to the delay since their initial domestic application for the relevant facilities and the reduced chances of the second applicant conceiving a child. They did not specify a particular sum. Alternatively, they suggested that the question of any compensation be adjourned to see if the second applicant were to conceive and/or to obtain an expert report on the effect of delay on the chances of conception. The Government submitted that there was no specific evidence of distress over and above the normal concern of any party to litigation and, further, that the submission about the second applicant ’ s reduced chances of conceiving was speculative. In the Government ’ s view, a finding of a violation would constitute sufficient just satisfaction. 91. The Court does not consider it useful to adjourn its examination of this aspect of the applicants ’ claims under Article 41 of the Convention. It is further of the view that there is no causal link between the violation established (refusal of the requested facilities without an assessment complying with Article 8) and the damage alleged (the applicants ’ failure to conceive a child) having regard, inter alia, to the nature of conception and the second applicant ’ s age even when she initially applied for the facilities in December 2002. 92. However, the Court has found that, in applying the Policy, the domestic authorities did not take adequate account of the interests of the applicants on a matter of vital importance to them (paragraph 7 2 above). In such circumstances, the Court considers it evident that this failure was, and continues to be, frustrating and distressing for the applicants. The Court therefore awards, on an equitable basis, 5, 000 euros (EUR) in total to the applicants in compensation for the non-pecuniary damage suffered, to be converted into pounds sterling at the rate applicable on the date of settlement. B. Costs and expenses 93. The applicants claimed reimbursement of their legal costs and expenses as regards their solicitor and their counsel at a rate of 250 pounds sterling (GBP) per hour. As to their solicitor, they claimed for almost 21 hours ’ work (of which 13 concerned the Grand Chamber) as well as for his attendance ( 2 days) at the hearing before the Grand Chamber. They also claimed for the costs of 110 letters and telephone calls at GBP 25 per letter/call. They further claimed for 31 hours of work by counsel (of which 22 concerned the Grand Chamber) as well as for counsel ’ s attendance at the hearing (also 2 days). With value-added tax (VAT) at 17.5%, the overall legal costs and expenses claim amounted to GBP 24,733.75. The Government maintained that the hourly rate of GBP 250 (for both the barrister and solicitor) was excessive, particularly as neither was based in London. Any nationally approved fee levels were not relevant in this regard and the Court should allow an hourly rate of no more than half the above-noted amount. In the Government ’ s view, the number of hours for which fees were claimed was also excessive, particularly since the solicitor appeared in some respects to duplicate work done by counsel. The Court should, the Government concluded, award no more than GBP 8,000 in total in respect of legal costs and expenses. 94. The Court notes that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). 95. The Court finds that the claims may be regarded as somewhat high, in particular having regard to the claim for 2 days ’ professional costs of a solicitor and of counsel for the Grand Chamber hearing which lasted one morning and noting that the bill of costs vouching counsel ’ s costs omitted 22 hours of Grand Chamber work otherwise listed in the overall itemised bill of costs for which the applicants claimed reimbursement. Although significant work was necessarily involved in the preparation for and attendance at the Grand Chamber hearing, it finds the amounts claimed for the period after the Chamber judgment excessive. It also finds the hourly charge- out rate to be high. In the applicants ’ favour, it is noted that the applicants ’ essential concern, and the bulk of the argument, centred on their successful complaint about the Policy ’ s compliance with Article 8 of the Convention. 96. In light of the circumstances of the case, the Court awards legal costs and expenses in the amount of EUR 2 1 ,000, inclusive of VAT and less EUR 2, 148.09 in legal aid paid by the Council of Europe, to be converted into pounds sterling on the date of settlement. C. Default interest 97. 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 as a fair balance had not been struck between the competing public and private interests. |
780 | Medical negligence and liability of health professionals | THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION 42. The applicant complained that she had no effective domestic mechanism whereby issues of civil liability could be determined in respect of the alleged negligent care of her deceased son and through which she could have obtained compensation for the non-pecuniary loss sustained by her including grief, loss and distress. She invoked Article 2 alone and in conjunction with Article 13 of the Convention. The parties’ observations, summarised below, were filed prior to the delivery of the Supreme Court judgment in Rabone (paragraphs 40-41 above). 43. Article 2, in so far as relevant, reads as follows: “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 13 reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 44. The applicant died after introducing the present application and her daughter, Ms King, wished to pursue the application on her behalf. The Government did not make any comment. The Court considers that the conditions for striking the case out of its list of pending cases, as defined in Article 37 § 1 of the Convention, are not met and that it must accordingly continue to examine the application at Ms King’s request ( Arsenić v. Slovenia (nos. 22174/02 and 23666/02, §§ 17-19, 29 June 2006). 45. The Government maintained that the applicant had at her disposal an effective remedy pursuant to section 7 of the HRA, under the 1976 Act and/or under the 1934 Act. The applicant argued that those remedies were not available to her. The Court considers that the question of the availability of effective domestic remedies prior to the above-described Supreme Court judgment in the Rabone case of February 2012 is closely linked with, and should be joined to, the merits of the related complaints under Articles 2 and 13 of the Convention. Even assuming that the Rabone judgment means that the applicant would now have available to her an effective remedy (an action for damages under the HRA within the time-limit for which section 7(5) of the HRA provides), the Court notes any such remedy was not clarified by the Supreme Court until over 4½ years after her original HRA action was struck out and, most importantly, until 4 years after she introduced her application to this Court. The Court does not consider that there exist exceptional circumstances which could compel the applicant to exhaust any such remedy at this point ( Baumann v. France, no. 33592/96, § 47, 22 May 2001; Brusco v. Italy, no. 69789/01 (dec.), 6 September 2001; and, more recently, Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, 23 September 2010). 46. 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. 1. The applicants’ observations 47. The applicant argued that, while a mechanism for establishing any liability and compensation was crucial to the fulfilment of the obligations under Articles 2 and/or 13, such a mechanism was not available to her. 48. In the first place, her action under the HRA was struck out on a point of law without any consideration of the evidence or the facts, the County Court finding that there was no legal basis for it given settled case-law. As pleaded by the State defendants and as found by the County Court, there was clear case-law at the time which distinguished between the positive obligation owed to detained and non-detained patients. Two legal opinions confirmed that an appeal against the County Court’s decision had no prospects of success and, on receipt of one opinion, the Legal Services Commission withdrew legal aid. Nor was there any reason to appeal from the County Court following the Court of Appeal decision in Savage. That decision re-affirmed the distinction between the State’s positive obligation to detained and non-detained patients, a distinction maintained by each relevant domestic decision thereafter. The Court of Appeal judgment in the above-cited Rabone case definitively precluded any argument that there was any prospect of a successful appeal from the decision of the County Court. 49. Secondly, while the Trust and the Council accepted duties of care to Mr Reynolds, they were unenforceable since the applicant, either as a claimant in her own right or on behalf of the estate, had no viable cause of action where there was no dependency claim and where the death had been instantaneous. Whether or not she was an executor of Mr Reynolds’ estate (and she was not), any claim on behalf of the estate for funeral expenses would not have been viable as it would not have satisfied any cost/benefit analysis required to enable the grant of legal aid. Any damages for pre-death pain and suffering would have been minor given the instantaneous nature of the death. In short, in the absence of any pecuniary claim (a dependency claim) and where the non-pecuniary loss was limited to bereavement under the 1976 Act, the value of any such claim would be insufficient to enable the applicant to enforce the substance of a complaint regarding death. 50. Thirdly, no other mechanism (Inquest or complaints/disciplinary mechanisms) could have established civil liability and awarded damages for non-pecuniary loss for bereavement. The internal inquiry was not independent and it did not identify liability, its conclusions were limited to reinforcing glass and it did not satisfactorily address Mr Reynolds’ placement in the ISMOS Unit. The Inquest could not establish any civil liability and it did not even address whether Mr Reynolds should have been placed at the ISMOS Unit. It established the immediate cause of death and not the wider causal factors (such as negligent care) which might be contributory. The enhanced Middleton investigation was not considered necessary where the potential failure related only to clinical care of a non-detained patient and was not of such a character as to reach the bar for a potential finding of gross negligence. 2. The Government’s observations 51. The Government argued that the applicant did not have an arguable claim of a violation of Article 2 of the Convention. She was not suggesting that the medical personnel knew or ought to have known of a risk of suicide but rather, as alleged before the County Court, that they had been negligent in their assessment and care of her son. However, even if there had been medical negligence, the Powell decision made it clear that this would be insufficient to establish a violation of Article 2 of the Convention. 52. Even if there were such an arguable claim, the Government pointed to a number of mechanisms which together satisfied the Article 2 obligation to implement a legislative and administrative framework to protect life. 53. In the first place, the Inquest was prompt, public and independent and the family was entitled to be legally represented. Numerous relevant witnesses were heard and were questioned by the next-of-kin. The latter could have requested the Coroner to hear further witnesses or to put additional questions. The Inquest identified and exposed to the public the circumstances surrounding his death and the persons involved. 54. Secondly, the internal inquiry further elucidated the circumstances of the death and the steps to be taken to avoid any future similar deaths. 55. Thirdly, and as to the accountability objective of the Article 2, the Government accepted that neither the Inquest nor the Inquiry determined any individual responsibility. Criminal responsibility was not alleged and there was no complaint about a failure to bring disciplinary proceedings. Moreover, the Government argued that the applicant had access to a mechanism to establish any civil liability. 56. In this respect, the applicant had access to proceedings under the HRA whereby her allegation of the State’s liability under Article 2 was examined. The County Court did not strike out the case on the basis of the High Court judgment in Savage as the applicant claimed. The issue in Savage was whether the Osman “operational duty” applied to a mental health detainee, whereas the applicant’s case amounted to a claim that ordinary clinical negligence was sufficient to establish a breach of Article 2 by the State. The County Court concluded that it was unlikely that any appeal in Savage would render the Trust and Council liable under Article 2 because an allegation of ordinary negligent medical care was insufficient of itself to establish a breach of Article 2 of the Convention ( Powell v. the United Kingdom, no. 45305/99, (dec.) 4 May 2000). Accordingly, any future finding in Mrs Savage’s favour by the Court of Appeal would not have changed anything for the applicant who alleged ordinary clinical negligence. The applicant therefore had a remedy which she used and it was found that she did not have a good case under Article 2. Her HRA action demonstrated not a breach of Article 2 but compliance with it. 57. If the applicant considered that the County Court had erred, she could have appealed immediately or sought leave to appeal out-of-time following the judgments on appeal in the Savage case. Counsel’s advice on chances of success could only exempt an applicant from exhausting a remedy when the subject was settled law but, when the applicant’s case was struck out, the scope of the positive duty under Article 2 to protect voluntary mental health patients from suicide was not settled law. At the time of the County Court decision, there was no Court of Appeal or House of Lords’ judgment on the issue as the Court of Appeal judgment in Takoushis concerned only investigative obligations. The matter was not even clear after the House of Lords’ judgment in Savage and it was resolved by the Court of Appeal in the Rabone case. 58. Moreover, the applicant could have taken civil negligence proceedings. She could have applied to be an executor of the deceased’s estate and brought proceedings, on behalf of the estate, as regards any claim vested in the estate at the time of death and which could have been brought by the deceased. Such a claim could have included claims of medical negligence and of a breach of an occupier’s common law duty to protect (the Occupiers Liability Act 1957) and both defendants had accepted in the HRA action that they owed such duties to Mr Reynolds. Any breaches of those duties would render compensation for pecuniary and non-pecuniary loss payable, the amount of damages depending on the level of pecuniary and non-pecuniary damage sustained by Mr Reynolds as a result of the alleged breach of duty of care in accordance with the established principles of law concerning damages in tort: limited damages would be simply a reflection of limited pecuniary and non-pecuniary loss. Even if damages would not be substantial, this would not amount to a bar on obtaining a judicial determination on liability in principle or in practice, the Government referring to the above-described settlement in the Rabone case. 59. Finally, and as regards Article 13, the Government reiterated that the applicant had a remedy under the HRA and a breach of Article 13 of the Convention was not established just because she had been unsuccessful on the merits of that action. 3. The Court’s assessment 60. The Court has examined the applicant’s complaint under Article 13 in conjunction with Article 2 of the Convention. In particular, it has considered whether there is an arguable claim of a breach of Article 2 of the Convention and whether civil proceedings for establishing any liability and, if so, awarding non-pecuniary damages were available to the applicant in that respect ( Z and Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR 2001-V; Keenan v. the United Kingdom, no. 27229/95, §§ 123-133, ECHR 2001-III; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 96-102, ECHR 2002-II; and Bubbins v. the United Kingdom, no. 50196/99, §§ 173/176, ECHR 2005 ‑ II). 61. As to the existence of an “arguable claim” for the purposes of Article 2, the Court notes as follows. The applicant’s son had a history of schizophrenia and was known to the health services. Having suffered a relapse of his psychotic symptoms, including voices telling him to kill himself, he was assessed as a low suicide risk and transferred as a voluntary patient by the NHS Trust to an ISMOS Unit for which the Council was responsible. At one point during the evening before he died, he was found wandering outside the ISMOS Unit and encouraged by staff to return, which he did. Moreover, the applicant’s son later broke a window in the Unit and fell to his death from the sixth floor of the building occupied by the Unit. The Coroner, concerned as he was about a psychiatric facility on a sixth floor, reported the incident to the NHS Trust under Rule 43 of the Coroner’s Rules 1984. The windows have since been reinforced and the long term plan is to transfer the ISMOS Unit to a two-storey building. In such circumstances, the Court considers that there is an arguable claim that the position of the applicant’s son was such that an operational duty arose to take reasonable steps to protect him from a real and immediate risk of suicide and that that duty was not fulfilled. 62. As to the compensatory remedies available, it is common ground that the Inquest, while constituting a detailed examination of the circumstances of the death, could not examine individual civil liability (paragraphs 15 and 27-28 above). It was not suggested that there was any question of criminal or disciplinary responsibility in the present case. The internal inquiry held was not independent, the NHS being responsible for the Trust. 63. As to an action under the HRA on which the Government first relied, the Court recalls that the applicant’s HRA action, alleging negligence and a violation of Article 2 of the Convention, was struck out under Rule 3.4 of the Civil Procedure Rules on the basis that she had no reasonable grounds for bringing the claim. The Government argued that this amounted to a rejection of the merits of her negligence case. The applicant maintained that the HRA action was a limited remedy which did not apply to her case. The Court recalls that the Court of Appeal had found in 2005, in the above-cited Takoushis case which concerned allegations of negligence as regards a voluntary mental health patient, that the Powell decision meant that the relevant Article 2 substantive responsibility was limited to cases where gross negligence or manslaughter was alleged. The Government suggested that Takoushis was not clear precedent because the core dispute therein concerned the investigatory duties under Article 2. However, the Court of Appeal in Takoushis explained why its view on the applicability and scope of Article 2 protection was important in that case and subsequent domestic courts did not treat as obiter the Takoushis ruling on the Powell substantive obligation under Article 2. On the contrary, the High Court in Savage later accepted that obligation as outlined in Takoushis and went on to apply it to a case concerning the death of an involuntary patient due to alleged negligence. The County Court therefore applied this case-law from two superior courts to the present applicant’s case (death of a voluntary patient due to alleged clinical negligence) and found it clear from that case-law that the parameters of the applicant’s case fell outside the scope of an action under the HRA alleging a violation of Article 2 of the Convention. Indeed the County Court considered the case-law to be so certain in these respects that an appeal in the Savage case did not raise sufficient prospects of success for the applicant’s case as to require it to be adjourned pending the Savage appeal. The applicant’s case was not therefore rejected as failing to disclose negligence but rather as not disclosing a cause of action under the HRA and, in particular, the County Court applied contemporary domestic case-law to the effect that she had no cause of action under the HRA about the allegedly negligent care and death of her son as he was a voluntary psychiatric in-patient. Moreover, the Court does not accept that any purpose would have been served by the applicant lodging an appeal immediately after the County Court decision if she considered it to be erroneous or by lodging an appeal thereafter on an out-of-time basis following the appeals in the Savage case. While the House of Lords in the Savage case (2008) later confirmed the existence of an Article 2 “operational duty” to suicide-risk patients, the Court of Appeal in Rabone found in 2010 that any such duty did not concern voluntary psychiatric patients. It was not until February 2012 that the Supreme Court in Rabone definitively confirmed that an operational duty to protect could arise as regards voluntary psychiatric patients such as the applicant’s son and, further, that parents would be entitled to damages for non-pecuniary loss following the death of a child in such a situation. Accordingly, while the underlying reasoning may have changed over the years, prior to February 2012 the applicant did not have an action for damages under the HRA for her non-pecuniary loss following the death of her son. 64. As to a civil action in negligence pursuant to the 1934 and 1976 Acts on which on which the Government further relied, it is noted that, in their written pleadings in the applicant’s HRA action, the Trust and Council accepted that they owed common law duties of care to the applicant’s son (paragraph 21 above). 65. However, it is also noted that, as the mother of an adult child and a non-dependant, the applicant would have been unable to claim damages under the 1976 Act on her own behalf. Moreover, the Court does not consider that a negligence action on behalf of the estate of her son was available to the applicant even assuming she could have applied to be an executor of that estate and that any such award to his estate could constitute compensation for the applicant’s bereavement. The survival of any such action on behalf of the deceased and in favour of his estate is governed by the 1934 Act. Given the circumstances of the applicant’s son’s death (which was instantaneous), there is no evidence that he inflicted physical injury on himself before the moment of his death. While it is likely that he suffered significant anguish and fear, there is no evidence that this would be regarded as psychiatric “injury” in the sense recognised by domestic law. The most therefore that could be recovered under the 1934 Act on behalf of the deceased’s estate would have been the funeral expenses (as regards the 1976 and 1934 Acts, see the above-cited Keenan judgment, § 129 and Bubbins v. the United Kingdom, no. 50196/99, § 172, ECHR 2005 ‑ II). It must be concluded therefore that the applicant had no prospect of obtaining adequate compensation for the non-pecuniary damage suffered by her as a result of the death of her child (either directly or as a beneficiary of her son’s estate). 66. Moreover, and contrary to the Government’s argument, this lack of compensation would itself reduce access to the civil remedy. The lack of compensation for non-pecuniary damage would almost certainly have had a negative bearing on any application by the applicant for legal aid to take civil proceedings and the Government did not dispute that she could not afford legal representation or that she would have required legal aid to effectively pursue any such negligence action (the above-cited Bubbins judgment, § 172). 67. The Court has therefore concluded that the present applicant did not have available to her, prior to the introduction of her application to this Court, civil proceedings to establish any liability and compensation due as regards the non-pecuniary damage suffered by her on her son’s death. 68. The Court therefore concludes that there has been a violation of Article 13 in conjunction with Article 2 of the Convention and, consequently, it dismisses the Government’s objection as to the applicant’s failure to exhaust domestic remedies. 69. It is consequently not necessary also to examine the same complaint under Article 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. 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.” 71. The applicant claimed that she suffered bereavement and distress following her son’s death which was compounded by her distress and frustration at the failure of the State to provide an adequate civil remedy. She claimed 25,000 euros (EUR) in respect of non-pecuniary damages, plus any tax or interest payable on that amount. 72. The Government argued that a finding of a violation would constitute sufficient just satisfaction. Alternatively, since her complaint concerned a procedural aspect of Article 2 only, the applicant could not, as a matter of principle, seek to recover damages for her bereavement arising from the death itself. In the alternative, the sum claimed was excessive and the Government left to the Court the assessment of any sum which it considered appropriate to award under this head. 73. The Court has found a violation of Article 13 in conjunction with Article 2 (paragraph 67 above) in that domestic law did not afford a civil remedy to the present applicant enabling any liability to be established and any appropriate redress to be obtained as regards the non-pecuniary loss sustained by the applicant on the death of her son. The Court notes that the applicant did have the benefit of a detailed Inquest which elucidated the central facts of the present case but it accepts that the lack of civil remedy likely caused her some frustration and distress so that the Court awards the applicant the sum of EUR 7,000, plus any tax that may be chargeable on this sum. B. Costs and expenses 74. She claimed the sum of GBP 29,826.09 for the costs and expenses incurred before the Court comprising GBP 4387.34 in solicitors’ fees, GBP 13,453.75 in barrister’s fees and GBP 11,985.00 in Queen’s Counsel’s (“QC”) expenses. Vouchers were submitted. The Government considered the claim excessive. They argued that it was unnecessary to brief both a barrister and a QC, that the barrister’s claim for more than 35 hours of work to reply to the Government’s observations was excessive, that there was no breakdown of the solicitor’s and the QC’s costs and that the latter’s claims were excessive when viewed against the claim for the barrister’s work. 75. 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 8,000 for the proceedings before the Court, plus any tax that may be chargeable on this sum. C. Default interest 76. 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 13 (right to an effective remedy) in conjunction with Article 2 (right to life) of the Convention. It noted in particular that it was not until February 2012 that the UK Supreme Court had confirmed in a separate case that an operational duty to protect suicide-risk patients could arise as regards voluntary psychiatric patients such as the applicant’s son, and that parents would be entitled to non-pecuniary damage following the loss of a child in such a situation. However, prior to that date the applicant had not had any remedy available in respect of her non-pecuniary loss. |
662 | Private persons | II. RELEVANT DOMESTIC LAW AND PRACTICE 35. On 6 February 1995 the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Security Organisations or Intelligence or Counterintelligence Organisations of Armed Forces of States which Have Occupied Estonia Act ( Eestit okupeerinud riikide julgeolekuorganite või relvajõudude luure- või vastuluureorganite teenistuses olnud või nendega koostööd teinud isikute arvelevõtmise ja avalikustamise korra seadus ) was passed. It entered into force on 28 March 1995. 36. The Act provided for registration and disclosure of persons who had served in or co-operated with certain security or intelligence organisations of Nazi Germany and Soviet Union, enumerated in the Disclosure Act, between 17 June 1940 and 31 December 1991 (sections 1 to 3). Section 4 of the Disclosure Act stipulated that it applied to staff members of the security or intelligence organisations as well as to persons who had co-operated with these organisations and set forth criteria as to what was to be deemed as the co-operation in question. 37. Section 5 provided that the persons concerned were registered on the basis of a personal confession submitted to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act or on the basis of other available evidence. 38. In case the person concerned did not make a personal confession or knowingly provided false information, information about his service in or co-operation with the security or intelligence organisations was to be made public (sections 6 to 8). Conversely, persons who submitted a personal confession within one year of the entry into force of the Disclosure Act without providing false information were, as a rule, not made public (sections 7(2) and 8(1)) and information concerning them was classified as state secret for fifty years (section 6 of the State Secrets Act ( Riigisaladuse seadus )). 39. Before presentation of the notice for publication the person concerned was notified of the text thereof by the Estonian Internal Security Service (section 8(2) of the Disclosure Act). He or she had the right, within one month of receipt of the notice, to have access to the pertinent documents in the Estonian Internal Security Service and to contest the information contained in the notice before the Estonian Internal Security Service or a court. The burden of proof of the person ’ s service in security or intelligence organisations or co-operation therewith lied with the Estonian Internal Security Service (section 8(4)). 40. In a judgment of 31 January 2003 (case no. 3-257/2003) the Tallinn Administrative Court granted a complaint against a notice of the Estonian Internal Security Service. It found that the complainant ’ s employment in the NKVD ( People ’ s Commissariat for Internal Affairs, a predecessor of the KGB) had not been proven by proper evidence. The court ordered the Estonian Internal Security Service to delete the data on the complainant from its register. This judgment was upheld by the Tallinn Court of Appeal judgment of 8 December 2003 (case no. 2-3/394/2003). The Court of Appeal noted that the burden of proof in the cases falling under the Disclosure Act lied with the Estonian Internal Security Service and emphasised that registration and disclosure of the persons in question could not be based on mere suspicions. III. RELEVANT COUNCIL OF EUROPE DOCUMENTS 41. On 27 June 1996 the Parliamentary Assembly of the Council of Europe ( PACE ) adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems. It reads, in so far as relevant: “ 1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and over-regulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome. ... 3. The dangers of a failed transition process are manifold. At best, oligarchy will reign instead of democracy, corruption instead of the rule of law, and organised crime instead of human rights. At worst, the result could be the "velvet restoration" of a totalitarian regime, if not a violent overthrow of the fledgling democracy. In that worst case, the new undemocratic regime of a bigger country can present also an international danger for its weaker neighbours. The key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge. 4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures. 5. The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on the principle(s) of: IV. RELEVANT EUROPEAN UNION MATERIAL 43. On 23 September 2008 the European Parliament adopted a Declaration on the proclamation of 23 August as European Day of Remembrance for Victims of Stalinism and Nazism. The Declaration reads as follows: “ The European Parliament, ... D. whereas the influence and significance of the Soviet order and occupation on and for citizens of the post-Communist States are little known in Europe, ... 1. Proposes that 23 August be proclaimed European Day of Remembrance for Victims of Stalinism and Nazism, in order to preserve the memory of the victims of mass deportations and exterminations, and at the same time rooting democracy more firmly and reinforcing peace and stability in our continent ... ” 44. On 2 April 200 9 the European Parliament adopted a Resolution on European conscience and totalitarianism. The Resolution reads as follows: “ The European Parliament, ... – having regard to the Truth and Justice Commissions established in various parts of the world, which have helped those who have lived under numerous former authoritarian and totalitarian regimes to overcome their differences and achieve reconciliation, ... A. whereas historians agree that fully objective interpretations of historical facts are not possible and objective historical narratives do not exist; whereas, nevertheless, professional historians use scientific tools to study the past, and try to be as impartial as possible, ... F. whereas the memories of Europe ’ s tragic past must be kept alive in order to honour the victims, condemn the perpetrators and lay the foundations for reconciliation based on truth and remembrance, G. whereas millions of victims were deported, imprisoned, tortured and murdered by totalitarian and authoritarian regimes during the 20th century in Europe; whereas the uniqueness of the Holocaust must nevertheless be acknowledged, H. whereas the dominant historical experience of Western Europe was Nazism, and whereas Central and Eastern European countries have experienced both Communism and Nazism; whereas understanding has to be promoted in relation to the double legacy of dictatorship borne by these countries, THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicant complained that his right to respect for his private and family life had been breached owing to the publication of the information that he had worked as a driver of the KGB. He relied on Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 46. The Government contested that argument. A. Admissibility 1. The parties ’ submissions 47. The Government argued that the applicant had not exhausted domestic remedies. He had not contested the notice of 27 February 2004 of the Estonian Internal Security Service neither before the Service nor before an administrative court. Only by contesting the notice could he have prevented publication of the announcement and disclosure of the fact of his service in the KGB. The Government additionally suggested that the fact that the announcement had already been published by the time the court proceedings took place, and that the Chancellor of Justice had expressed his opinion on the matter in the meantime, may have played certain role in the domestic courts ’ assessment of the proportionality of the interference. Although the applicant ’ s subsequent complaint to the administrative courts was admissible, it could not bring along the same consequence as contestation of the notice of 27 February 2004, that is prevention of the disclosure. 48. The applicant submitted that he had not wished to contest the notice by the Estonian Internal Security Service as the fact of his work in the security department had been known to everyone. Negative consequences for him had occurred several months later when the announcement in which he had been called a person who had occupied Estonia had been published on the Internet. 2. The Court ’ s assessment 49. As regards the question whether the applicant was required to contest the notice presented to him by the Estonian Internal Security Service in order to comply with the requirement of exhaustion of domestic remedies, the Court has taken note of the domestic case-law which demonstrates that publication of an announcement in Riigi Teataja Lisa could be prevented by contesting the notice in question (see paragraph 40 above). The Court observes, however, that the present case differs from the one referred to above in that in the present case the applicant did not dispute the fact of his service in the KGB. It would appear that the question of whether the publication amounted to a disproportionate interference with the private life of the person falling under the Disclosure Act could be raised either through challenging the Estonian Internal Security Service ’ s initial notice or the actual publication of the announcement in Riigi Teataja Lisa. The Court notes that in the present case, although the applicant did not use the possibility to contest the notice, the administrative courts nevertheless examined on the merits his complaint against the publication of the announcement. Therefore, the Government ’ s argument about non-exhaustion of domestic remedies must be rejected. 50. The Court considers that the Government ’ s additional arguments on non-exhaustion (see paragraph 47 above) are not pertinent. Firstly, the argument about the relevance of the fact that the announcement had been published by the time of the court proceedings does not find support in the Court of Appeal ’ s reasoning (see paragraph 31 above). Secondly, as concerns the fact that the opinion of the Chancellor of Justice – according to which the Disclosure Act was not unconstitutional (see paragraph 23 above) – was known to the domestic courts, it is not for the Court to speculate whether the domestic courts would have decided the applicant ’ s case differently if they would have dealt with it before the Chancellor of Justice gave his opinion. In any event, this opinion was not binding on the courts which were independent in deciding the case. Therefore, the Government ’ s additional arguments on non-exhaustion must also be rejected. 51. 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 52. The applicant was of the opinion that in the announcement of the Estonian Internal Security Service published in Riigi Teataja Lisa in 2004 he had been considered as a person who had occupied Estonia whereas in the announcements published later, in 2005, the persons in question had not been referred to as persons who had occupied Estonia but rather as persons who had been in the service of the intelligence organisations of the USSR. He argued that it was unclear on the basis of which evidence he was deemed as an occupier and why he was considered to be dangerous. He submitted that “occupier” ( okupant ) was a word that was understood to refer to a serious crime involving conquering the country with the use of arms and exercising occupation therein. At the time when the applicant had worked as a driver for the security department, the activities of this institution had been supervised by the local Communist Party committee where the Prime Minister of the Republic of Estonia of the time of the submission of the observations had held a position of responsibility. 53. The applicant had never concealed his employment in the security department. This fact could be seen from his employment record and no employer had had any problems with that. However, after the publication of the announcement on the Internet under the title referring to an “occupier” he was being considered as an occupier, a traitor, a snitch among his colleagues and acquaintances. He was forced to quit his job and lost his income. The applicant considered that it was wrong and offending to call him an occupier. (b) The Government 54. The Government emphasised that it was not in dispute that from 1980 until 1991 the applicant had worked as a driver in the KGB. Furthermore, the interference with the applicant ’ s right to respect for his private life was in accordance with law and it was necessary in a democratic society in the interests of national security, public safety and for the protection of the rights and freedoms of others. The Government pointed out that for the transfer from a totalitarian regime to a democratic system, Estonia took various measures which, in aggregate, had to ensure the development and security of the democratic system. Criminal liability for crimes against humanity and war crimes committed under the totalitarian regime was established and an obligation to take an oath of conscience was introduced for those seeking the highest offices in the country. The Disclosure Act dealt with the persons who had not committed any crimes but had been employed by or collaborated with the intelligence or counterintelligence authorities of the States which had occupied Estonia. It was found that such persons had to come to terms with their past and not to try to forget, conceal or be silent about it. There was also a significant public interest in the publicity of information relating to the past; this had to guarantee transparency and clarity as well as overall internal peace in the society. Obtaining complete information about the members and agents of the security and intelligence authorities which had operated on the territory of Estonia was also important for the protection of independence and security of the Republic of Estonia. Estonia was lacking the relevant information; such information, including the lists of persons who had worked in the KGB, was in the hands of foreign States. There could be attempts to recruit former staff of the security authorities and make them perform security or intelligence tasks, or they could be subject to blackmailing. Such situation was dangerous and damaging for Estonia. The Government referred to recent cases where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason. 55. The Government also pointed out that persons falling under the Disclosure Act could express their loyalty to the Republic of Estonia by submitting a confession, in which case their data was not disclosed. Moreover, in order to secure protection to the persons concerned, the disclosure was subject to prior judicial review. As regards the question whether it was necessary to also disclose information about persons who, as the applicant, had worked as drivers, the Government argued that the formal job title was not decisive as the drivers could also perform other tasks, especially in rural regions where the applicant had worked. There had even been separate positions formally combining the tasks of the driver with other functions, such as “driver-intelligence officer” dealing with secret surveillance, and for some of the drivers the driver ’ s position had been a step for advancement to the next, “more important” position, like that of an operative agent or intelligence officer. The Government also argued that the Estonian Internal Security Service, having regard to their limited resources, focused on cases which were more important and which could involve real danger to the Republic of Estonia. 2. The Court ’ s assessment 56. The Court considers that the publication of the information about the applicant ’ s service in the KGB concerned facts about his personal past that were made available to the public and also affected his reputation. It therefore constituted an interference with his right to respect for his private life (compare Sidabras and Džiautas v. Lithuania, nos. 55480 /00 and 59330/00, §§ 42-50, ECHR 2004 ‑ VIII). 57. The Court further notes that the lawfulness of the interference was not in dispute between the parties. It observes that the interference in question was based on the Diclosure Act that had been adopted by the Riigikogu and published according to the rules in force. Nor has it been disputed that the text of the law was sufficiently clear to enable those affected to foresee the consequences it entailed. The law ’ s accessibility and public awareness of it is also confirmed by the information provided by the Government according to which 1,153 persons submitted a confession to the Estonian Internal Security Service within one year of the entry into force of the Disclosure Act in order not to have information about their service in or collaboration with the security and intelligence organisations published. Thus, the Court is satisfied that the impugned interference was lawful for the purposes of the second paragraph of Article 8 of the Convention. 58. As regards the purpose of the interference, the Court notes that the registration and disclosure of the former employees and collaborators of the security and intelligence organisations of the regimes that had operated in Estonia were part of the measures taken to ensure the transparency, clarity and internal peace in the society, as well as to avoid security threats. The Court has also taken note of the cases referred to by the Government where former employees or collaborators of the KGB had provided a foreign country with state secrets leading to their conviction of treason (see paragraph 54 above). The Court concludes that the interference in question pursued legitimate aims within the meaning of paragraph 2 of Article 8, namely the protection of national security and public safety, the prevention of disorder as well as well as the protection of the rights and freedoms of others (compare, mutatis mutandis, Sidabras and Džiautas, cited above, §§ 54-55 ). 59. Accordingly, the Court proceeds to the examination of whether the measure was “necessary in a democratic society”. The Court observes in this connection that there is no uniform approach among High Contracting Parties as to the measures to dismantle the heritage of former communist totalitarian systems (see Matyjek v. Poland (dec.), no. 38184/03, § 36, ECHR 2006 ‑ VII ). Different measures have been applied and their application has given rise to a number of cases before the Court concerning a variety of issues such as restrictions on the persons ’ eligibility to stand for elections (see Ždanoka v. Latvia [GC], no. 58278/00, ECHR 2006 ‑ IV, and Ādamsons v. Latvia, no. 3669/03, 24 June 2008) or to their employment (see Vogt v. Germany, 26 September 1995, Series A no. 323; Volkmer v. Germany (dec.), no. 39799/98, 22 November 2001; Sidabras and Džiautas, cited above; Rainys and Gasparavičius v. Lithuania, nos. 70665/01 and 74345/01, 7 April 2005; and Žičkus v. Lithuania, no. 26652/02, 7 April 2009) as well as lack of access to the information on the basis of which the persons ’ collaboration with former secret services was established (see Matyjek v. Poland, no. 38184/03, 24 April 2007) or reduction of pensions of the persons concerned (see Cichopek and Others v. Poland (dec.) no. 15189/10 and other applications, 14 May 2013). Against this background, the Court turns to the proportionality analysis of the impugned measures in the present case. 60. The Court reiterates that in a number of previous cases it has criticised the lack of individualisation of the impugned measures. Thus, in Ādamsons it considered that the group of persons – former KGB agents – to which the restrictions to stand for elections applied, had been designed in a too broad manner without having regard to the period of service of the persons concerned, specific tasks assigned to them or their individual behaviour (see Ādamsons, cited above, § 125). Similarly, in Žičkus the lack of differentiation in domestic law between different levels of former involvement with the KGB was pointed out by the Court (see Žičkus, cited above, § 33). In addition to the lack of differentiation in domestic law as regards the premises for the application of the restrictions, the Court has also addressed the issue of broadly fashioned restrictions applied to the individuals concerned. Thus, in Sidabras and Džiautas, it noted that with the exception of references to “lawyers” and “notaries”, domestic law contained no definition of the specific private sector jobs, functions or tasks which the applicants were barred from holding (see Sidabras and Džiautas, cited above, § 59). 61. The Court is of the view that the above considerations also apply to the present case. It notes that the Disclosure Act made no distinction between different levels of former involvement with the KGB. It is true that under the applicable procedure the applicant was informed beforehand of the text of the announcement to be published, and given a possibility to contest the factual information contained in it. However, there was no procedure put in place to assess the specific tasks performed by individual employees of the former security services in order to differentiate the danger they could possibly pose several years after the termination of their career in these institutions. The Court is not convinced that there existed a reasonable link between the legitimate aims sought by the enactment of the Disclosure Act and the publication of information about all former employees of the former security services including drivers, as in the applicant ’ s case, regardless of the specific function they performed in these services. 62. The Court also notes that although the Disclosure Act came into force three and a half years after Estonia had declared its independence on 20 August 1991, the publication of the information about the former employees of the security services was stretched over several years. Thus, in the applicant ’ s case the information in question was only published in 2004 – almost thirteen years after the restoration of the Estonian independence. The Court is of the opinion that any threat the former servicemen of the KGB could initially pose to the newly created democracy must have considerably decreased with the passage of time. It notes that it does not appear from the file that any assessment of the possible threat posed by the applicant at the time of the publication of the information was carried out (compare Žičkus, loc. cit. ). 63. Lastly, the Court observes that the Disclosure Act in itself did not impose any restrictions on the applicant ’ s employment. Nevertheless, according to the applicant he was derided by his colleagues and forced to quit his job. The Court considers that even if such a result was not sought by the Disclosure Act, it is nevertheless indicative of the seriousness of the interference with the applicant ’ s right to respect for his private life. 64. The foregoing considerations are sufficient to enable the Court to conclude that the applicant ’ s right to respect for his private life was subject to a disproportionate interference in the present case. There has accordingly been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 66. The applicant claimed 2,556 euros (EUR) – loss of his four months ’ salary – in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage. 67. The Government argued that it had not been proven that the applicant had been forced to quit his work, or that he had lost his income. In respect of non-pecuniary damage, the Government were of the opinion that as the Convention had not been violated, there was no basis for awarding any compensation. In the event that the Court found a violation, such a finding itself would constitute sufficient just satisfaction. If the Court decided to award monetary compensation, the Government left it to the Court to determine a reasonable sum in non-pecuniary damages. 68. The Court considers that the applicant has not submitted any proof to determine the sum of the alleged pecuniary damage. It therefore rejects this claim. On the other hand, having regard to all the circumstances of the present case, the Court considers that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 69. The applicant also claimed EUR 1,508.65 for the costs and expenses incurred before the domestic authorities and before the Strasbourg Court. 70. The Government were of the opinion that part of the legal costs claimed by the applicant were completely irrelevant to the present case and in respect of other alleged costs no invoices had been submitted or money paid. The Government asked the Court to reject the applicant ’ s claims for costs and expenses. 71. 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 absence of proof of payment does not necessarily result in the rejection of a claim for costs and expenses that is in itself well-founded (see S. v. Estonia, no. 17779/08, § 55, 4 October 2011, and Krejčíř v. the Czech Republic, nos. 39298/04 and 8723/05, § 137, 26 March 2009). 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 1,444.74 covering costs under all heads. C. Default interest 72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been violation of Article 8 (right to respect of private life) of the Convention. It observed in particular that the publication of information about the applicant’s employment as a driver of the KGB had affected his reputation and therefore constituted an interference with his right to respect for his private life. The interference – which had been based on the Disclosure Act – was admittedly lawful and had pursued a legitimate aim for the purpose of Article 8, namely the protection of national security and public safety, the prevention of disorder and the protection of the rights and freedoms of others. The Court however found that in the applicant’s case the measure had been disproportionate to the aims sought. In this regard, it noted in particular that, under the relevant national legislation, information about all employees of the former security services – including drivers, as in the applicant’s case – was published, regardless of the specific function they had performed. In the present case, although the Disclosure Act itself did not impose any restrictions on the applicant’s employment, according to his submissions he had been derided by his colleagues and had been forced to quit his job. Even if such a result was not sought by the Act it nevertheless testified to how serious the interference with the applicant’s right to respect for his private life had been. |
330 | Freedom of assembly (Article 11) | II. RELEVANT LAW AND PRACTICE A. Domestic legislation on freedom of assembly 1. Constitutional guarantees 13. Article 34 of the Constitution provides : “ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ... The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law. ” 2. The Demonstrations Act 14. At the material time section 10 of Law no. 2911 on assemblies and marches was worded as follows : “ In order for a meeting to take place, the governor ’ s office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board ... ” 15. Section 22 of the same Act prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares must comply with security instructions and not disrupt individuals ’ movement or public transport. Finally, section 24 provides that demonstrations and processions which do not comply with the provisions of this Act will be dispersed by force on the order of the governor ’ s office and after the demonstrators have been warned. B. Opinion of the Venice Commission 16. The European Commission for Democracy through Law ( the Venice Commission) at its 64 th plenary session (21-22 October 2005) adopted an opinion interpreting the OSCE/ODHIR guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings. It set out its approach in this area, particularly with regard to advance notice of demonstrations in public places. “ 29. Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right. In fact, in several European countries such regimes do exist. The need for advance notice generally arises in respect of certain meetings or assemblies – for instance, when a procession is planned to take place on the highway, or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have (for instance, of regulating traffic) to obstruct the event. ” However, the Venice Commission clearly emphasised that the regime of prior notification must not in any circumstances indirectly restrict the right to hold peaceful meetings by, for instance, providing for too detailed and complicated requirements, or imposing too onerous procedural conditions ( paragraph 30 of the opinion ). C. International regulations on the use of “tear gas” 17. Under Article I § 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 ( “the CWC”), each State Party undertakes not to use riot control agents as a method of warfare. Tear gas or so-called “pepper spray” are not considered chemical weapons (the CWC contains an annex listing the names of prohibited chemical products ). The use of such methods is authorised for the purpose of law enforcement, including domestic riot control ( Article II § 9 ( d ) ). Nor does the CWC state which State bodies may be involved in maintaining public order. This remains a matter for the sovereign power of the State concerned. The CWC entered into force with regard to Turkey on 11 June 1997. 18. It is recognised that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging ( haemorrhaging of the suprarenal gland ). THE LAW I. AS TO THE ADMISSIBILITY 19. The Court considers, in the light of the parties ’ submissions, that this part of the application raises complex issues of fact and law which require examination on the merits; accordingly, it cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. As no other ground for declaring it inadmissible has been established, the Court declares the remainder of the application admissible. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 20. The applicant complained that a tear gas, known as “pepper spray”, had been used to disperse a group of demonstrators, provoking physical unpleasantness such as tears and breathing difficulties. She relied on Article 3 of the Convention, which provides : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 21. The Government noted that the gas used to disperse the demonstrators complied with health requirements and with international conventions. They explained that the gas used was Oleoresin Capsicum (OC), known as “pepper spray”, and submitted an expert report on this product. They also noted that the applicant had not submitted any medical report as evidence of possible ill -effects caused by the gas. 22. The applicant contested the Government ’ s argument. 23. The Court reiterates that, according to its case-law, ill - treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. Treatment is considered to be “inhuman” if, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. Furthermore, in considering whether a 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, inter alia, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). 24. The Court will examine the facts in the light of its well-established case-law ( see, among several other examples, Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998-VIII; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996-V; Klaas v. Germany, 22 September 1993, § 30, Series A no. 269; and Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 ‑ IV). 25. The Court will first examine the issue of the use of “pepper spray”. It notes that this gas, used in some Council of Europe member States to keep demonstrations under control or to disperse them in case they get out of hand, is not among the toxic gases listed in the Annex to the CWC. However, it notes that the use of this gas may produce side-effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of tear ducts and eyes, spasms, thoracic pain, dermatitis or allergies ( see paragraph 18 above ). 26. However, the Court observes that the applicant did not submit any medical reports to show the ill-effects she had suffered after being exposed to the gas. The applicant, who had been released shortly after being arrested, had not asked for a medical examination either ( see Kılıçgedik v. Turkey (dec.), no. 55982/00, 1 June 2004). In short, there is no shred of evidence to substantiate her allegations of treatment contrary to Article 3 of the Convention. 27. The Court therefore holds that there has been no violation of Article 3 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 28. The applicant complained of an infringement of her right to freedom of expression and of assembly, in that the demonstration and the reading of a press statement, scheduled for the end of the event, had been prohibited by the police. The Court points out that, in its partial decision on the admissibility of the application, it stated its intention to examine these complaints 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 ... 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 prevention of disorder or crime ... or for the protection of the rights and freedoms of others. ...” 29. The Government submitted that the meeting in question had been organised unlawfully in that no advance notification had been sent to the relevant authorities. They pointed out that the second paragraph of Article 11 imposed limits on the right of peaceful assembly in order to prevent disorder. 30. The Court notes at the outset that there is no dispute as to the existence of an interference in the applicant ’ s right of assembly. This interference had a legal basis, namely section 22 of Law no. 2911 on assemblies and marches, and was thus “prescribed by law” within the meaning of Article 11 § 2 of the Convention. There remains the question whether the interference pursued a legitimate aim and was necessary in a democratic society. 1. Legitimate aim 31. The Government submitted that the interference pursued legitimate aims, including the prevention of disorder and protection of the rights of others. 32. The Court considers that the disputed measure may be regarded as having pursued at least two of the legitimate aims set out in paragraph 2 of Article 11, namely the prevention of disorder and the protection of the rights of others, specifically the right to move freely in public without restriction. 2. Necessary in a democratic society 33. In the Government ’ s opinion, the applicant had taken part in a demonstration, held in a public square without prior notification and contrary to the relevant domestic legislation. They also noted that, together with other demonstrators, the applicant had not complied with the order to disperse. In those circumstances, and taking into account the margin of appreciation afforded to States in this sphere, the Government considered that the risk of disruption to civilians who were in the park at a busy time of day and the demonstrators ’ resistance justified the dispersal of the gathering in question. In their opinion, the police intervention had been a necessary measure within the meaning of the second paragraph of Article 11 of the Convention. 34. The applicant alleged that the police had intervened without waiting for the public statement to be read out, on the pretext that the meeting was disrupting public order. 35. The Court refers in the first place to the fundamental principles underlying its judgments relating to Article 1 1 ( see Djavit An v. Turkey, no. 20652/92, §§ 56 ‑ 57, ECHR 2003 ‑ III; Piermont v. France, 27 April 1995, §§ 76 ‑ 77, Series A no. 314; and Plattform “ Ärzte für das Leben ” v. Austria, 21 June 1988, § 32, Series A no. 139 ). It is clear from this case-law that the authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens. 36. The Court also notes that States must not only safeguard the right to assemble peacefully but also refrain from applying unreasonable indirect restrictions upon that right. Finally, it considers 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 ( see Djavit An, cited above, § 57 ). 37. As a preliminary point, the Court considers that these principles are also applicable with regard to demonstrations and processions organised in public areas ( see Djavit An, cited above, § 56). It notes, however, that it is not contrary to the spirit of Article 11 if, for reasons of public order and national security, a priori, a High Contracting Party requires that the holding of meetings be subject to authorisation and regulates the activities of associations ( see Djavit An, cited above, §§ 66 ‑ 67 ). 38. Having regard to the domestic legislation, the Court observes that no authorisation is required for the holding of public demonstrations; at the material time, however, notification was required seventy-two hours prior to the event. In principle, regulations of this nature should not represent a hidden obstacle to the freedom of peaceful assembly as it is protected by the Convention. It goes without saying that any demonstration in a public place may cause a certain level of disruption to ordinary life and encounter hostility; this being so, it is important that associations and others organising demonstrations, as actors in the democratic process, respect the rules governing that process by complying with the regulations in force. 39. The Court considers, in the absence of notification, the demonstration was unlawful, a fact that the applicant does not contest. However, it points out that an unlawful situation does not justify an infringement of freedom of assembly ( see Cisse v. France, no. 51346/99, § 50, ECHR 2002 ‑ III). In the instant case, however, notification would have enabled the authorities to take the necessary measures in order to minimise the disruption to traffic that the demonstration could have caused during rush hour. In the Court ’ s opinion, it is important that preventive security measures such as, for example, the presence of first-aid services at the site of demonstrations, be taken in order to guarantee the smooth conduct of any event, meeting or other gathering, be it political, cultural or of another nature. 40. It appears from the evidence before the Court that the group of demonstrators was informed a number of times that their march was unlawful and would disrupt public order at a busy time of day, and had been ordered to disperse. The applicant and other demonstrators did not comply with the security forces ’ orders and attempted to force their way through. 41. However, there is no evidence to suggest that the group in question represented a danger to public order, apart from possibly disrupting traffic. There were at most fifty people, who wished to draw attention to a topical issue. The Court observes that the rally began at about 12 noon and ended with the group ’ s arrest within half an hour. It is particularly struck by the authorities ’ impatience in seeking to end the demonstration, which was organised under the authority of the Human Rights Association. 42. In the Court ’ s view, where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance. 43. Accordingly, the Court considers that in the instant case the police ’ s forceful intervention was disproportionate and was not necessary for the prevention of disorder within the meaning of the second paragraph of Article 11 of the Convention. 44. There has accordingly been a violation of that provision. IV. 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 1, 190. 83 euros (EUR) in respect of pecuniary damage for having been prevented from working for six hours on the day of the demonstration and EUR 20, 000 in respect of the non-pecuniary damage which she alleged she had sustained. 47. The Government contested these amounts. 48. The Court finds no causal link between the violation found and the pecuniary damage alleged, and dismisses this claim. In addition, with regard to the non-pecuniary damage, it considers that the applicant is sufficiently compensated by the finding of a violation of Article 11 of the Convention. B. Costs and expenses 49. The applicant also claimed EUR 8, 051. 77 for the costs and expenses incurred before the Court. 50. The Government considered that sum exorbitant. 51. According to the Court ’ s 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 by the applicant and are reasonable as to quantum ( see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999 ‑ II ). In this connection, it notes that the applicant has not furnished any evidence in support of the costs and expenses incurred. It remains the case, however, that preparation of the instant judgment necessarily incurred certain costs. Accordingly, ruling on an equitable basis, the Court considers it reasonable to award the applicant EUR 1, 0 00 under this head. 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 11 (freedom of assembly) of the Convention, finding that the forceful intervention of the police had been disproportionate and had not been necessary for the prevention of disorder. It noted in particular that the group of demonstrators – some fifty persons who had wished to draw public attention to a topical issue – had not represented any danger to public order, apart from possibly disrupting traffic. Further, observing that the rally had begun at around midday and had ended within half an hour with the police intervention, the Court was struck by the authorities’ impatience in seeking to end the demonstration, which had been organised under the auspices of the Human Rights Association. In the Court’s view, where demonstrators did not engage in acts of violence it was important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention was not to be deprived of all substance. |
747 | Freedom of expression / Freedom to receive and impart information (Article 10 of the Convention) | RELEVANT LEGAL FRAMEWORK 25. The following is the summary of the relevant provisions of the Law on Access to Information, as applicable at the material time. 26. Article 3 provided: Article 3 – Principal definitions “... 3.0.5. an information owner – state bodies, municipalities, legal entities irrespective of the ownership type, and individuals as determined by Article 9 of this Law to ensure the right of access to information; 3.0.6. a request for information – a written or oral request to access information; 3.0.7. a person making a request for information ... – a legal entity or individual applying in writing or verbally to access information; 3.0.8. disclosure of information – without a request for information having been made, distribution of information via mass media, official publications, questionnaires or information booklets; placement of information on the internet; declaration of information at briefings, press-releases or conferences; notification of information during official or public events.” 27. According to Article 9, State bodies were among those considered as information owners. 28. Article 10 provided for an obligation of information owners to ensure everyone’s right of free, unimpeded access to information on equal conditions for all. An information owner was required, inter alia, to respond to information requests in the shortest possible time and in a manner most suitable for a person making the request (Article 10.4.1), disclose information which was required to be publicly disclosed in a manner stipulated in the Law (Article 10.4.4), inform the person making the request on restrictions imposed on access to information (Article 10.4.6), and protect the information restricted for access by law (Article 10.4.7). 29. According to Article 17.2, if an information owner to which an information request was addressed was not in possession of the requested information, it were to assist the person making the request with finding where the information in question was held. 30. According to Article 20, having examined a request for information, the information owner’s relevant official was required to take one of the following three decisions: refuse the request, grant the request, or forward the request to the relevant information owner. 31. An information owner could refuse to provide access to information in the following cases, inter alia : if access was restricted by law (Article 21.1.1); if it was not in possession of the requested information or had difficulties in determining the actual information owner (Article 21.1.2); if the volume of requested information was so large that providing it would significantly disrupt the information owner’s official activities or entail unnecessarily high expenses (Article 21.2.3); if responding to a request required systematisation, analysis and documentation of the information (Article 21.2.5). 32. According to Article 21.3, a refusal to provide access to information was to be written in a clear and substantiated manner, to include references to the relevant provisions of the applicable law and to mention the right of the person making the request to challenge the refusal in courts. 33. According to Article 23.1, if a State body or municipality was not in possession of the requested information, it was required to determine the relevant information owner and forward the information request to the latter without a delay, and in any event no later than five working days, and inform the person making the request about it accordingly. 34. Article 29.1 listed the types of information that information owners were obligated to “disclose” (the term defined in Article 3.0.8 cited in paragraph 26 above) to the public, “in order to meet the public interest in a simpler and more efficient manner and to reduce the number of requests for information”. The list, which consisted of thirty-four lines in total, included the following types of information: reports on activities of State bodies and municipalities; information on environment and environmental harm (Article 29.1.14); decisions and orders of State authorities and municipalities; list of information constituting State secrets; and so on. 35. The types of information listed in Article 29.1 could not be requested by way of an individual information request, subject to certain exceptions not relevant to the present case (Article 29.2). 36. According to Article 34.1, information was divided into two types: information open for general use and restricted information. Any information which was not restricted by law was considered open information (Article 34.2). Restricted information was either secret ( məxfi ), which included State secrets, or confidential ( gizli (konfidensial) ), which included various professional and commercial information and confidential investigative and court material (Articles 34.3 and 34.4). Private information could be either confidential or open (Article 34.4). 37. According to Article 35.1, an information owner could restrict access to certain information which it considered to be designated for official use ( xidməti istifadə ). Such restriction was limited in time and could apply to the following types of information, inter alia : information which, if disclosed prematurely, could hinder or potentially hinder formation, development or successful completion of State policies, until there was an agreement on completion of the relevant process (Article 35.2.3); information which, if disclosed prematurely, could disrupt or potentially disrupt processes involving an exchange of ideas and consultations within a State body, until a relevant final decision was taken (Article 35.2.5); documents originating from foreign States or international organisations, until a mutual agreement concerning their disclosure was obtained (Article 35.2.8); and “information endangering or potentially endangering the environment”, until the causes of such danger were eliminated (Article 35.2.9). In any event, the time-limit for restriction on access to information designated for official use could not exceed five years (Article 40.1). THE LAW JOINDER OF THE APPLICATIONS 38. 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 10 OF THE CONVENTION 39. The applicant complained that the denial of access to the information sought by him from the relevant State authorities had been in breach of his right under Article 10 of the Convention to access information of public interest. 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.” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions 40. The Government raised no objections as to the admissibility of the complaint, other than arguing that it was partly substantively unmeritorious (see paragraph 54 below). 41. The applicant submitted that Article 10 of the Convention was applicable to his complaint because the requested access to State-held information was instrumental for the exercise of his right to freedom of expression. The Court’s assessment 42. Although the Government have not raised an objection as regards the applicability of Article 10 of the Convention, the Court considers that it must address this issue of its own motion. 43. At the outset, the Court notes that, in the present case, the applicant sent two consecutive information requests to the Ministry of Healthcare and to the Cabinet of Ministers respectively and, having received, in his view, an incomplete reply to the first request and subsequently no reply to the second one, he instituted two separate sets of proceedings against the mentioned authorities. The Court notes that the texts of the relevant requests were not identical. However, both requests made by the applicant to two different State authorities concerned access to the same State-held information relating to the assessment of the environmental and public ‑ health impact of the Gabala Radar Station and, as such, should be considered to have constituted essentially the same information request (see paragraphs 9-10 and 17 above). 44. The Court reiterates that Article 10 does not confer on the individual a right of access to information held by a public authority or oblige the Government to impart such information to the individual. However, such a right or obligation may arise where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information” and where its denial constitutes an interference with that right (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 156, 8 November 2016). 45. In determining this question the Court will be guided by the principles laid down in Magyar Helsinki Bizottság (ibid., §§ 149-80) and will assess the case in the light of its particular circumstances and having regard to the following criteria: (a) the purpose of the information request; (b) the nature of the information sought; (c) the role of the applicant; and (d) whether the information was ready and available. 46. As regards the purpose of the information request and the role of the applicant, the Court notes that the applicant was a journalist at the material time and worked as an editor of Azadlıq newspaper. The applicant expressly informed the relevant State authorities that he needed the information in question as a journalist in order to analyse and report on the issues concerning the Gabala Radar Station’s environmental and public-health impact (see paragraphs 10 and 17 above). Therefore, in view of the applicant’s role and the purpose for which he sought the information in question, the Court is satisfied that the requested information was instrumental for the performance of his professional duties as a journalist. 47. As regards the nature of the information, the Court reiterates that the information to which access is sought must meet a public-interest test. The public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well ‑ being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. What might constitute a subject of public interest will, moreover, depend on the circumstances of each case (see Magyar Helsinki Bizottság, cited above, § 162, with further references). In the present case, the Court considers that, by its very nature, the information requested was clearly of general public importance, as it concerned the potential impact of the radar station on the health and well-being of the population of the area where the station was located (see paragraphs 7-8 above). As such, the requested information constituted a matter of public interest. 48. Finally, in so far as the applicant sought to obtain a copy of the Commission’s report, the very existence of which has never been disputed and of which the applicant was, in fact, informed in the Ministry of Healthcare’s letter of 6 August 2010, the Court considers that the information in question was, in principle, ready and available and that the request did not pose any practical difficulties or an unreasonable burden for the authorities to gather the requested information. 49. In sum, the Court is satisfied that the information sought by the applicant, which was ready and available, constituted a matter of public interest. Access to this information was instrumental for the applicant, as a journalist, to exercise his right to receive and impart information. 50. For these reasons, Article 10 of the Convention is applicable. 51. The Court further notes that the 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 52. The applicant contested the Government’s submission that the Cabinet of Ministers was not an “information owner” within the meaning of domestic law (see paragraph 54 below), arguing that that authority had been in possession of the report as officially confirmed by the Ministry of Healthcare. He added that, moreover, the Ministry of Healthcare itself also should have been in possession of a copy of the report. In any event, even if that was not the case, as required by Article 23.1 of the Law on Access to Information, the Ministry of Healthcare should have forwarded the information request to the Cabinet of Ministers, instead of providing an incomplete response to him. Moreover, the Cabinet of Ministers’ subsequent complete failure to respond to his second request was in breach of Article 21.3 of that Law. 53. The applicant argued that there had been no substantive lawful grounds for the authorities’ denial of access to the requested information. The contents of the Commission’s report did not belong to any categories of restricted information. In the absence of public disclosure of the report’s contents by the authorities of their own accord in accordance with Article 29.1 of the Law on Access to Information, the authorities had been required by law to provide access to it on the basis of an information request. The domestic courts had failed to give a correct factual and legal assessment of the case. In particular, in the second set of proceedings, the domestic courts had given a manifestly incorrect interpretation of Article 29 of the Law on Access to Information in order to justify the Cabinet of Ministers’ inaction. 54. The Government submitted that the domestic courts had correctly concluded that the Ministry of Healthcare had “executed” the applicant’s request by responding to his letter. The Government further noted that, since the Commission had been established by the President, the report in question had to be ultimately submitted to the President. In such circumstances, it was the President who was the “information owner” in the present case, and not the Cabinet of Ministers. Although the report had been submitted by the Commission to the Cabinet of Ministers “in accordance with the system of hierarchy”, the latter could not be considered an information owner and, therefore, the domestic courts had been correct in dismissing the applicant’s complaints. The Court’s assessment 55. Having regard to its findings in paragraphs 49-50 above, and noting that the applicant did not receive the Commission’s report, the Court considers that the domestic authorities interfered with his rights enshrined in Article 10 § 1 of the Convention. 56. The Court reiterates that an interference with an applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of Article 10 § 2. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims. 57. The principles relevant to an assessment of whether an interference with freedom of expression was “prescribed by law” have been summarised in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland ([GC], no. 931/13, §§ 142-45, 27 June 2017). Moreover, the Court reiterates that its power to review compliance with domestic law is limited and it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018, and Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, § 108, 26 March 2020). Nor is it for the Court to express a view on the appropriateness of the methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004 ‑ I). 58. In assessing the lawfulness of the interference in the present case, the Court will have regard to the text of the relevant law itself as well as the manner in which it was applied and interpreted by the domestic authorities and courts (see, mutatis mutandis, Jafarov and Others v. Azerbaijan, no. 27309/14, § 70, 25 July 2019). 59. At the outset, the Court notes that it cannot accept the Government’s argument that the information in question should have been requested from the President (see paragraph 54 above), because that argument was not supported by any references to relevant domestic law or practice and because no findings of that nature had been made by the domestic courts. Turning next to the lawfulness of the response given to the applicant by the Ministry of Healthcare, the Court notes that, indeed, as argued by the applicant, it appears that the domestic courts had not adequately addressed the issue of whether the Ministry of Healthcare’s response to the applicant’s first request had been compliant with Article 23.1 of the Law on Access to Information, which provided that, in situations where the State authority to which the information request had been directed was not in possession of that information, it was required to forward that request to the relevant “information owner” (see paragraph 33 above). Arguably, if it was true that the Ministry did not have the report, under that provision, the Ministry of Healthcare should have forwarded the request to the relevant authority of its own motion and should have informed the applicant about it, which was not done in the present case. 60. Nevertheless, despite the above, the applicant himself applied to the Cabinet of Ministers for a copy of the report but received no reply. In this connection, the Court notes, in particular, that Article 21.3 of the Law on Access to Information required that a refusal to provide access to information was to be made in writing and in a substantiated manner, including references to the applicable provisions of the domestic law serving as a ground for the refusal (see paragraph 32 above). Accordingly, the Cabinet of Ministers’ failure to respond to the request was in apparent breach of the above legal requirement. However, this matter was not at all addressed by the domestic courts. 61. Moreover, the Court notes that the reasoning provided by the domestic courts for dismissing the applicant’s claim against the Cabinet of Ministers was essentially confined to holding, with reference to Article 29.1 of the Law on Access to Information, that that provision “[did] not provide for an obligation of an information owner to disclose reports of commissions created for a specific purpose” (see paragraph 22 above). Accordingly, the courts found that Article 29.1 of the Law on Access to Information constituted the sole substantive legal basis for denying the applicant access to the report. For the reasons specified below, the Court cannot but agree with the applicant’s submission that, in the circumstances of the present case, this finding was based on a manifestly unreasonable interpretation and application of the domestic law. 62. In particular, having regard to the text of Article 29.1 of the Law on Access to Information, read in conjunction with Article 3.0.8 of that Law, the Court notes that it clearly concerned only the types of information which were required to be publicly disclosed by information owners of their own accord and not in response to individual requests for information (see paragraphs 26 and 34 above). In other words, it did not, as such, limit access by members of the public to State-held information. On the contrary, it facilitated such access by requiring information owners to disclose certain types of often-sought information to the public at large. Within the textual meaning of the relevant provisions of the Law on Access to Information, it appears that access to information which did not belong to the types specifically listed in Article 29.1 could be sought by way of a request for information made on an individual basis (see, inter alia, Articles 3.0.6 and 3.0.7 in paragraph 26 above, Article 10 in paragraph 28 above, and Article 29.2 in paragraph 35 above) and that the relevant information owners were required to provide such access to the person making the request, unless the requested information was lawfully restricted for access or there were other specifically defined grounds for refusing to provide access (see, inter alia, Articles 10, 20 and 21 in paragraphs 28, 30 and 31 above, respectively). 63. In the present case, the report requested by the applicant had not been publicly disclosed by the State authorities of their own accord under Article 29.1 of the Law on Access to Information. Moreover, it has never been established that it belonged to the types of information which the State authorities were required to disclose under that provision and, in fact, the courts in the present case expressly ruled that it did not. 64. It therefore follows that, by relying on Article 29.1 of the Law on Access to Information, without dealing with its scope of applicability and exact meaning, the domestic courts failed to establish that that provision could constitute a relevant and applicable substantive legal basis for denying to the applicant access to the requested information. Moreover, the crux of the applicant’s claim did not concern any failure by the State authorities to disclose the contents of the report of their own accord, but concerned the alleged breach of the legal requirements applicable to processing individual requests for information. However, the domestic courts failed to assess the issues put before them in the light of the requirements of those legal provisions which were actually relevant and applicable to the situation at hand (compare Yuriy Chumak v. Ukraine, no. 23897/10, § 45, 18 March 2021, and, mutatis mutandis, Akhverdiyev v. Azerbaijan, no. 76254/11, § 97, 29 January 2015). In particular, they failed to duly assess the compliance of the information owner with the procedural requirements concerning a written response to an information request, as well as the existence of any applicable substantive grounds for a refusal to provide access to information, such as, inter alia, whether the requested information was lawfully restricted for access. 65. In sum, the Court considers that it has not been demonstrated that the denial of access to the requested information by either of the two State authorities in question was in compliance with the procedural requirements of the domestic law and that no relevant substantive legal basis for such denial has been put forward either by the domestic authorities or courts or by the Government. The domestic courts dismissed the applicant’s claims against both authorities without due regard to the applicable provisions of the Law on Access to Information and, moreover, in so far as the claim against the Cabinet of Ministers is concerned, they dismissed it by having interpreted and applied the domestic law in a manifestly unreasonable manner. 66. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant’s rights in the present case was not “prescribed by law”. Having reached that conclusion, the Court does not need to satisfy itself that the other requirements of Article 10 § 2 (legitimate aim and necessity of the interference) have been complied with. 67. There has accordingly been a violation of Article 10 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 68. The applicant complained under Article 6 of the Convention that the domestic courts’ judgments in both sets of proceedings had not been adequately reasoned, because the courts had failed to correctly assess his arguments from the standpoint of the domestic law. 69. Having regard to the conclusion reached above under Article 10 of the Convention (see paragraphs 65-67 above) and the parties’ submissions, the Court considers that there is no need to give a separate ruling on the admissibility and merits of this complaint in the present case (compare Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 70. 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 71. The applicant claimed 7,000 euros (EUR) in respect of non ‑ pecuniary damage. 72. The Government argued that the claim was excessive. 73. Regard being had to the approach taken in similar cases (see, in particular, Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 41, 14 April 2009; Centre for Democracy and the Rule of Law, cited above, § 124; and Yuriy Chumak, cited above, § 55), the Court considers that the finding of a violation constitutes, in the specific circumstances of the present case, sufficient just satisfaction for any non ‑ pecuniary damage which the applicant may have suffered and therefore makes no award under this head. Costs and expenses 74. The applicant also claimed EUR 6,552 for the costs and expenses incurred before the domestic courts and the Court. In support of this claim he submitted copies of two contracts for legal services concluded with his representatives. He also requested the Court that any award made in respect of costs and expenses be paid directly to one of his representatives, Mr R. Hajili. 75. The Government argued that the claim was excessive and unreasonable. They noted that an award in the amount of 1,500 Azerbaijani manats would be reasonable under this head. 76. 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 1,500 covering costs under all heads, plus any tax that may be chargeable to the applicant. 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. | In this case, the Court was satisfied, in particular, that the information requested by the applicant, which had been ready and available, constituted a matter of public interest. Access to this information had been instrumental for the applicant, as a journalist, to exercise his right to receive and impart information In the present case, the Court held that there had been a violation of Article 10 of the Convention, finding that the interference with the applicant’s rights was not “prescribed by law”. |
325 | Obligation on States to protect the victims | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practiceModern Slavery Act 2015 Modern Slavery Act 2015 Modern Slavery Act 2015 66. The Modern Slavery Act 2015 (“the 2015 Act”), which came into force on 31 July 2015, made comprehensive provision in respect of human trafficking. 67. Section 45 sets out the conditions which have to be satisfied for a defence to arise where there is a nexus between trafficking and a crime committed: “45. Defence for slavery or trafficking victims who commit an offence (1) A person is not guilty of an offence if— (a) the person is aged 18 or over when the person does the act which constitutes the offence, (b) the person does that act because the person is compelled to do it, (c) the compulsion is attributable to slavery or to relevant exploitation, and (d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act. (2) A person may be compelled to do something by another person or by the person’s circumstances. (3) Compulsion is attributable to slavery or to relevant exploitation only if— (a) it is, or is part of, conduct which constitutes an offence under section 1 or conduct which constitutes relevant exploitation, or (b) it is a direct consequence of a person being, or having been, a victim of slavery or a victim of relevant exploitation. (4) A person is not guilty of an offence if— (a) the person is under the age of 18 when the person does the act which constitutes the offence, (b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and (c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act. (5) For the purposes of this section— “relevant characteristics” means age, sex and any physical or mental illness or disability; “relevant exploitation” is exploitation (within the meaning of section 3) that is attributable to the exploited person being, or having been, a victim of human trafficking. ...” 68. Prior to the coming into force of the relevant provisions of the 2015 Act, there was no statutory provision in the United Kingdom which transposed into domestic law the State’s obligations under international conventions towards those victims of human trafficking who committed crimes where there was a nexus between the crime and the trafficking. Therefore, in cases where the defence of duress was not likely to be applicable, it was left to the judiciary and to the Crown/CPS to develop a legal regime in which the State’s international obligations were given effect. Relevant guidanceThe Government The Government The Government 69. In 2007 the Government published “Safeguarding Children who may have been Trafficked”. The publication provided the following definitions: “The most common terms used for the illegal movement of people – ‘smuggling’ and ‘trafficking’ – had very different meanings. In human smuggling, immigrants and asylum seekers pay people to help them enter the country illegally, after which there is no longer a relationship. Trafficked victims are coerced or deceived by the person arranging their relocation. On arrival in the country of destination, the trafficked victim is forced into exploitation by the trafficker or the person into whose control they are delivered or sold.” 70. The publication also drew attention to the (then current) Code for Crown Prosecutors, which provided that children coerced into criminal activity were victims of abuse and should not be criminalised. Even when the defence of duress would not be available, the decision whether it was in the public interest for the child to be prosecuted was directly engaged. 71. The United Kingdom Government “Trafficking Toolkit” was published in October 2009. Referring to the definition of trafficking found in Article 4 of the Anti-Trafficking Convention, it underlined the difference between trafficking and smuggling, both by reference to the nature of the crime and the relationship between the person organising the entry of the migrant and the migrant himself. Specific attention was drawn to the Anti-Trafficking Convention and the measures designed to protect victims of trafficking, including “the possibility of not imposing penalties on victims for their involvement in unlawful activities, if they were compelled to do so by their situation”. The CPS 72. In December 2007 the CPS published guidance on the “Prosecution of young defendants charged with offences who might be trafficked victims”. It highlighted the cultivation of cannabis plants as an offence likely to be committed by child victims of trafficking. According to the guidance, prosecutors should be alert to the possibility that in such circumstances a young offender could actually be a victim of trafficking and have committed the offences under coercion. Where there was clear evidence that a youth had a credible defence of duress, the case should be discontinued. Where the information concerning coercion was less certain, further details should be sought from the police and youth offender teams so that the public interest in continuing a prosecution could be considered carefully. Any youth who might have been trafficked should be afforded the protection of child care legislation if there were concerns that he or she had been working under duress or if his or her wellbeing was threatened. 73. The CPS Guidance on Human Trafficking and Smuggling (which was last updated, prior to the applicants’ arrest, on 4 February 2009) identified two offences highlighted by recent cases as likely to have been committed by child trafficking victims, one of which was the “cultivation of cannabis plants”. It continued: “Prosecutors should be alert to the possibility that in such circumstances a young offender may actually be a victim of trafficking and have committed the offences under coercion. Children who have been trafficked may be reluctant to disclose the circumstances of their exploitation on arrival into the UK for fear of reprisals by the trafficker or owner, or out of misplaced loyalty to them. This reluctance to disclose the real circumstances in which they have arrived into the country may have implications for a number of youth criminal justice processes. The child may have been coached by their trafficker to not disclose their true identity or circumstances to the authorities. In some cases, they may have been coached with a false version of events and warned not to disclose any detail beyond this as it will lead to their deportation. In a similar way to adults, children may have been subject to more psychological coercion or threats, such as threatening to report them to the authorities; threats of violence towards members of the child’s family; keeping them socially isolated; telling them that they/their family owes large sums of money and that they must work to pay this of; or through juju or witchcraft practices. Where there is clear evidence that the youth has a credible defence of duress, the case should be discontinued on evidential grounds. Where the information concerning coercion is less certain, further details should be sought from the police and youth offender teams, so that the public interest in continuing a prosecution can be considered carefully. Prosecutors should also be alert to the fact that an appropriate adult in interview could be the trafficker or a person allied to the trafficker. Any youth who might be a trafficked victim should be afforded the protection of our childcare legislation if there are concerns that they have been working under duress or if their wellbeing has been threatened. Prosecutors are also alerted to the DCSF and Home Office Guidance Safeguarding children who may have been trafficked. ... The UK Human Trafficking Centre (UKHTC) will make relevant enquiries to establish whether they may be a potential trafficking victim. When information reveals the possibility that they may be trafficked the prosecutor and officer in charge of the case will be contacted to ensure that policy guidance has been followed and the evidence re-reviewed in the light of new information. This guidance reflects the judgment in R v. O [2008] EWCA Crim 2835 .” The Association of Chief Police Officers (“ACPO”) 74. On 16 August 2010 the ACPO Child Protection and Abuse Investigation Group issued a document entitled “Position from ACPO Lead’s on Child Protection and Cannabis Cultivation on Children and Young People Recovered in Cannabis Farms”. It provided, insofar as relevant: “1. Police should be alert to the possibility that any person, adult or child, identified in a cannabis farm could be a victim of trafficking. CEOP strategic assessments, made up of intelligence submitted by the police, UKBA, children’s services and NGOs, highlight cases of children and young people being trafficked into the UK and exploited in cannabis farms. The intelligence indicates that sometimes, as a consequence of the need for more awareness of the problem, young persons are not identified as victims, statutory defences are not recognised and the individuals end up being charged, prosecuted and convicted of offences committed whilst being exploited. This is contrary to police protection obligations where the young person has been a victim of crime. It is also contrary to responsibilities in respect of child trafficking as enumerated under the Council of Europe (COE) Convention on Action Against Human Beings, which indicates that any person under the age of 18 years cannot consent to their own trafficking. The ACPO Lead on Child Protection and Abuse investigation, and the ACPO Lead on Cannabis Cultivation have endorsed the following approach. 2. In line with the ‘Safeguarding Children Who May Have Been Trafficked’ guidance, police should work with local authorities to ensure early identification of trafficked victims before entering any suspected cannabis farm. In the planning stage of any proactive operations or other police interventions on cannabis farms, dual operational planning should focus not only on the recovery of illegal drugs and the arrest of members of criminal enterprises, but also on the safeguarding of any children who are being exploited on the premises. Inter-agency strategies and protocols for early identification and notification should be set in place to advance in collaboration with local children’s services and UKBA representatives. The police team leading on the preparation of the proactive operation should consult with the force Child Protection team and, where it is anticipated that child victims of trafficking may be present, utilise Child Protection officers in the operation to ensure that safeguarding actions take place. 3. Every individual identified as, or claiming to be, a child or young person in a cannabis farm should be assessed on a case by case basis to ascertain whether they may have been trafficked. Where circumstances give rise to reasonable suspicion that they are being exploited or abused, a child welfare response should be taken. 4. No decision to progress charges against such individuals should be made until all relevant assessments have been undertaken. Prosecutors and Duty Solicitors have a duty to make full and proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking and to be proactive in establishing if a suspect is a potential victim of trafficking. Therefore, information about concerns of trafficking should be fully shared with the CPS. Cases of individuals claiming to be under 18 when they are not for tactical purposes are common. However, in cases of doubt, the young person should be given the benefit of that doubt in accordance with the COE Convention until information to the contrary is available. Where official records, or other reliable evidence, are not available to confirm age, a Merton compliant age assessment should be carried out by the local authority. 5. On recovery of any young person in a cannabis farm s/he should be taken to a place of safety immediately. A check on PNC or UKBA CID (central Intelligence Database) should be undertaken to ensure that police use all available resources to find information about the young person. 6. A referral should be made to the local authority children’s services for the appropriate assessments. Children’s services should be prepared for this referral, having been involved in the planning stages before entry into the premises. The local authority representative should be informed of the circumstances in which the young person was identified and the concerns around trafficking. The police should share as much information as possible to help children’s services undertake the appropriate assessments. A local authority representative should attend the police station (or other place of safety where the young person is taken) within an hour of notification to undertake a joint assessment and to produce a protection plan designed to keep the young person safe. This would require an interpreter who is able to safely communicate with the young person in their own language. 7. The overall aim of the local authority and police should be to assure the young person that they are safe ... 8. Any other welfare needs should be identified and responded to within a safeguarding and child protection context. 9. All assessments undertaken are to be decided between the local authority and the local police. The assessments used should be in accordance with existing child protection standards and use the multi-agency framework which is set out in the ‘Working Together to Safeguard Children’ guidance (2010). The assessments will be carried out by the appropriate child protection trained person in the relevant authority and should be carried out on an ongoing basis. Local authority, police and UKBA leads should meet within five days of initial joint assessment to discuss debrief of the young person, ongoing strategy and their protection plan. 10. Once the young person is safe and within a more stable environment, the local authority children’s services should conduct a trafficking assessment. ... Where a concern of trafficking is confirmed by the assessment, a referral should be made to the relevant competent authorities within the National Referral Mechanism. ... Safeguarding and child protection processes should be put into place in accordance with the young person’s needs. ... ... ... 12. If it is suspected that the young person is a potential victim of trafficking, it is the duty of the police, with assistance from local authorities, to investigate the trafficking allegations according to section 47 of the Children’s Act. It is important that offenders are prosecuted for trafficking crimes in order to protect future children from exploitation, and to act as a deterrent to others.” National Referral Mechanism and Competent Authorities 75. On 1 April 2009, to coincide with the coming into force of the Anti ‑ Trafficking Convention (see paragraph 102 below) the Government created the National Referral Mechanism (hereinafter, “the NRM”) to provide the framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support. To be referred to the NRM, potential victims of trafficking must first be referred to one of the United Kingdom’s two Competent Authorities which are responsible for making conclusive decisions on whether a person has been trafficked for the purpose of exploitation. The Competent Authorities are the United Kingdom Human Trafficking Centre, within the National Crime Agency, and the Home Office. 76. The Competent Authorities first make a “reasonable grounds” decision. The threshold for this decision is “I suspect but cannot prove”, and a positive decision triggers a forty-five day recovery and reflection period. Following this period, the same Competent Authority should make a “conclusive grounds” decision for which the threshold is a “balance of probabilities”, that is, that “it is more likely than not” that the person was trafficked. Relevant case-lawR v. O [2008] EWCA Crim 2835 R v. O [2008] EWCA Crim 2835 R v. O [2008] EWCA Crim 2835 77. The minor appellant in this case had pleaded guilty to an offence of possessing a false identity card with the intention of using it as her own and was sentenced to eight months’ imprisonment less sixteen days spent on remand. Although “The Poppy Project” (an organisation which supports vulnerable women who have been trafficked into England and forced into prostitution) alleged that she was a victim of a sex trafficking organisation, her legal representatives proceeded on the basis of her instructions without regard to the information provided by The Poppy Project. They did not consider whether she might have been the victim of trafficking or what the consequences of her true age might be. Her representatives were also unfamiliar with two protocols on the prosecution of young offenders and defendants charged with immigration offences who might be trafficked victims; and on prosecution of young offenders charged with offences who might be trafficked victims (see paragraphs 72-73 above), even though both protocols were incorporated into the Code for Crown Prosecutors. 78. The appellant appealed against conviction and her appeal was unopposed. In allowing the appeal the court said: “There was in this case material before the defence which should plainly have raised at least the apprehension that this appellant had been trafficked to the United Kingdom for the purposes of prostitution. The defence had information from her suggesting that she was at most 17, as counsel indeed submitted to the court, and perhaps only 16. From the custody record the Crown should have appreciated that she might have been a very young person. No steps were taken by the defence to investigate the history. No consideration was given by the defence as to whether she might have a defence of duress. The possibility that she might have been trafficked was ignored. There is nothing in the transcript to suggest that any thought had been given to the State’s possible duty to protect her as a young victim. Nobody considered that if she was 17 or less, she should not have been in the Crown Court at all. Counsel for the defence thought it right to refer to ‘an inevitable prison sentence’. The judge passed what she described as an ‘inevitable prison sentence’ of 8 months. If the appellant was 17 or less, a sentence of imprisonment as such was unlawful. For good measure the judge sentenced her without a report. This appeal against conviction must obviously be allowed. We would put it most simply on the footing that the common law and Article 6 of the European Convention on Human Rights alike require far higher standards of procedural protection than were given here. There was no fair trial. We hope that such a shameful set of circumstances never occurs again. Prosecutors must be aware of the protocols which, although not in the text books are enshrined in their Code. Defence lawyers must respond by making enquiries, if there is before them credible material showing that they have a client who might have been the victim of trafficking, especially a young client. Where there is doubt about the age of a defendant who is a possible victim of trafficking, proper inquiries must be made, indeed statute so required.” R. v. M(L) [2010] EWCA Crim 2327 79. In this case, which pre-dated the Modern Slavery Act 2015, the Court of Appeal considered three distinct appeals concerned with alleged failures to implement Article 26 of the Anti-Trafficking Convention (being the “non-punishment provision” – see paragraph 103 below). The court made the following comments: “The United Kingdom has taken extensive steps to discharge its obligations under this convention. There are in existence criminal offences of trafficking. So far as Article 10 is concerned, a number of bodies, whose purpose is the identification and assistance of victims, have been established. The United Kingdom Human Trafficking Centre (UKHTC) is a multi-agency centre, one of whose functions is the identification of those who are or may be trafficked victims. A National Referral Mechanism (NRM) also exists as a mechanism through which public bodies, including criminal justice bodies, can refer individual’s cases for consideration. In addition there are a number of third sector organisations whose object is the identification of those who are or may be victims of trafficking. One such is the Poppy Project, a charity largely funded by the government substantially for this purpose. There now exist also the Gangmaster’s Licensing Authority and a number of other bodies. These agencies are charged with the identification of persons who have ‘reasonable grounds for being treated as a victim of trafficking’. That test is derived directly from Article 10. When a person is identified as meeting that threshold test, he or she will be eligible for a number of forms of assistance, including a period of not less than 30 days for recovery and reflection during which no steps may be taken to repatriate or remove him. Because it is the trigger for the assistance to victim provisions, the test of reasonable grounds establishes a comparatively low threshold. If it is met, that does not mean that it has been determined that the person concerned actually is a victim of trafficking, but rather that there are reasonable grounds to believe that they may be. The application of Article 26 In England and Wales the implementation of Article 26 is achieved through three mechanisms. First, English law recognises the common law defences of duress and necessity (‘duress of circumstances’). Second, specific rules have been made for the guidance of prosecutors in considering whether charges should be brought against those who are or may have been victims of trafficking. Thirdly, in the event that the duty laid on the prosecutor to exercise judgment is not properly discharged, the ultimate sanction is the power of the court to stay the prosecution for what is conveniently, if not very accurately, termed ‘abuse of process’. The defences of duress and/or necessity (‘duress of circumstances’) may be in question where an offence has been committed by a trafficked victim whose case is that she was coerced into committing it. There is no special modification of the general law relating to these defences. There are important limitations to both defences. Duress is a defence (except to murder and attempted murder) if the offence has been committed as the direct (not indirect) result of a threat of death or serious injury aimed at the defendant or someone sufficiently close to him. But the defence is not established if there was evasive action which the defendant could reasonably be expected to take, including report to the authorities, and nor can it be established if the defendant has voluntarily associated with people in circumstances which amount to laying himself open to the compulsion to commit offences. For these broad propositions see R v Z [2005] 2 AC 467. The separate but allied defence of necessity or ‘duress of circumstances’ is available only where the commission of a crime was necessary or was reasonably believed to be necessary to avoid or prevent death or serious injury where, objectively viewed, commission of the crime was reasonable and proportionate having regard to the evil to be avoided or prevented and the crime would not have been committed without that necessity... The special guidance to prosecutors issued by the CPS in order to comply with the convention imposes on them a duty which includes but is wider than consideration of these common law defences. ... The effect of that [guidance] is to require of prosecutors a three-stage exercise of judgment. The first is: (1) is there a reason to believe that the person has been trafficked? If so, then (2) if there is clear evidence of a credible common law defence the case will be discontinued in the ordinary way on evidential grounds, but, importantly, (3) even where there is not, but the offence may have been committed as a result of compulsion arising from the trafficking, prosecutors should consider whether the public interest lies in proceeding to prosecute or not. The first step is not limited to reacting to any assertion of trafficking. Article 10 makes clear that States must take active steps to consider the question whenever it is a realistic possibility. For obvious reasons, one of the consequences of trafficking, especially far from home, may be to inhibit the victim from complaining. The vital additional third obligation is consistent with the requirements of Article 26, which, it is clear, uses the word ‘compelled’ in a general sense appropriate to an international instrument, and is not limited to circumstances in which the English common law defences would be established. ... It is necessary to focus upon what Article 26 does and does not say. It does not say that no trafficked victim should be prosecuted, whatever offence has been committed. It does not say that no trafficked victim should be prosecuted when the offence is in some way connected with or arises out of trafficking. It does not provide a defence which may be advanced before a jury. What it says is no more, but no less, than that careful consideration must be given to whether public policy calls for a prosecution and punishment when the defendant is a trafficked victim and the crime has been committed when he or she was in some manner compelled (in the broad sense) to commit it. Article 26 does not require a blanket immunity from prosecution for trafficked victims. It follows that the application of Article 26 is fact-sensitive in every case. We attempt no exhaustive analysis of the factual scenarios which may arise in future. Some general propositions can perhaps be ventured. i) If there is evidence on which a common law defence of duress or necessity is likely to succeed, the case will no doubt not be proceeded with on ordinary evidential grounds independent of the convention, but additionally there are likely to be public policy grounds under the convention leading to the same conclusion. ii) But cases in which it is not in the public interest to prosecute are not limited to these: see above. iii) It may be reasonable to prosecute if the defendant’s assertion that she was trafficked meets the reasonable grounds test, but has been properly considered and rejected by the Crown for good evidential reason. The fact that a person passes the threshold test as a person of whom there are reasonable grounds to believe she has been trafficked is not conclusive that she has. Conversely, it may well be that in other cases that [sic] the real possibility of trafficking and a nexus of compulsion (in the broad sense) means that public policy points against prosecution. iv) There is normally no reason not to prosecute, even if the defendant has previously been a trafficked victim, if the offence appears to have been committed outwith any reasonable nexus of compulsion (in the broad sense) occasioned by the trafficking, and hence is outside Article 26. v) A more difficult judgment is involved if the victim has been a trafficked victim and retains some nexus with the trafficking, but has committed an offence which arguably calls, in the public interest, for prosecution in court. Some of these may be cases of a cycle of abuse. It is well known that one tool of those in charge of trafficking operations is to turn those who were trafficked and exploited in the past into assistants in the exploitation of others. Such a cycle of abuse is not uncommon in this field, as in other fields, for example that of abuse of children. In such a case, the question which must be actively confronted by the prosecutor is whether or not the offence committed is serious enough, despite any nexus with trafficking, to call for prosecution. That will depend on all the circumstances of the case, and normally no doubt particularly on the gravity of the offence alleged, the degree of continuing compulsion, and the alternatives reasonably available to the defendant.” R. v. L(C) [2013] EWCA Crim 991 80. In this appeal, brought by three children and one adult who were trafficked by criminals and themselves prosecuted and convicted, the Court of Appeal indicated that “the distinct question for decision once it is found that the defendant is a victim of trafficking is the extent to which the offences with which he is charged, or of which he has been found guilty are integral to or consequent on the exploitation of which he was the victim. We cannot be prescriptive. In some cases the facts will indeed show that he was under levels of compulsion which mean that in reality culpability was extinguished. If so when such cases are prosecuted, an abuse of process submission is likely to succeed. That is the test we have applied in these appeals. In other cases, more likely in the case of a defendant who is no longer a child, culpability may be diminished but nevertheless be significant. For these individuals prosecution may well be appropriate, with due allowance to be made in the sentencing decision for their diminished culpability. In yet other cases, the fact that the defendant was a victim of trafficking will provide no more than a colourable excuse for criminality which is unconnected to and does not arise from their victimisation. In such cases an abuse of process submission would fail.” Relevant reportsThe Child Exploitation and Online Protection Command (“CEOP”): First “scoping report” The Child Exploitation and Online Protection Command (“CEOP”): First “scoping report” The Child Exploitation and Online Protection Command (“CEOP”): First “scoping report” 81. CEOP Command is a command of the United Kingdom’s National Crime Agency (the United Kingdom’s lead agency against organised crime) which works both nationally and internationally to bring online child sex offenders before the national courts. 82. Its first “scoping report” published in June 2007 identified Vietnamese boys and girls as a specific vulnerable group. It noted that some of these children had been found being exploited in cannabis factories while others were suspected to have been trafficked for the purposes of sexual exploitation. It noted that at least four children registered in the data set appeared to have been exploited in cannabis factories but were not identified as victims of trafficking and were arrested for cannabis cultivation. According to the report, if these children had in fact been trafficked then “this unfortunate consequence” could be attributed to the lack of awareness and capacity in some forces and CPS areas to recognise the indicators of child trafficking CEOP: Child Trafficking in the United Kingdom Strategic Threat Assessment (2009) 83. According to this threat assessment which was published in April 2009, Vietnamese children had the highest probability of being trafficked than any other profile encountered in the study. The Vietnamese children identified by CEOP were primarily involved in the cultivation of cannabis. Many were arrested in police raids on cannabis factories and some were charged, prosecuted and convicted for offences relating to the cultivation of cannabis and illegally obtaining an electricity supply. Although CEOP noted that both the ACPO and the CPS had issued guidance on the treatment of children found in such criminal enterprises to ensure that no child was brought before the courts where the crime committed was a direct result of trafficking, there remained concerns by NGOs that children were being prosecuted when it was neither appropriate nor in the public interest. It continued: “[l]ow awareness amongst law enforcement conducting raids could be a factor in the lack of screening for child trafficking within these situations. ... A more targeted focus by police and prosecuting authorities needs to be placed on those who use children to work in these factories, rather than the children themselves; and forces should avail themselves of the guidance and tools already available to identify child trafficking when investigating such cases.” CEOP: Strategic Overview 2009-10 84. In this overview CEOP identified the trafficking of Vietnamese children into and within the United Kingdom as one of the most significant trends during the relevant period. Most of these children were boys aged between thirteen and seventeen who were exploited as “gardeners” in cannabis factories. According to CEOP, many Vietnamese minors had been charged, prosecuted and sentenced for the production and supply of cannabis but there had been no convictions of Vietnamese criminals who trafficked the children into the United Kingdom. CEOP: Child Trafficking in the United Kingdom Strategic Threat Assessment (2010) 85. In this report CEOP noted: “In many cultures, children are expected to work at a young age, often foregoing education. Parents and children alike may therefore gladly take an opportunity to work abroad in order to earn more money for their family. The child may even be aware of the conditions, pay and risks involved. The child is unlikely to know about child protection and human rights legislation in the destination country. It is important for statutory agencies to recognise that any child working in illegal conditions, no matter how trivial, may potentially be in a situation of exploitation.” 86. COEP further noted the existence of regional differences between the profiles of trafficking victims. In its experience, some Vietnamese children were told upfront that they would be working in cannabis factories, and some stated that they did not know that cannabis was illegal, instead believing that they were entering legitimate work. It also observed from the dataset many similarities between victim background accounts, which could be an indication of coaching. In this regard, victims were often coached to provide a vague background story to the authorities, who would then assume he or she was an economic migrant and thus discount the possibility of trafficking. This was in itself a measure of control, as the intent was to stall the authorities long enough to return the victim to the trafficker. The information concerning payment also varied; while some victims stated that they were not paid, others were able to wire money home to their families. For example, one boy stated that he was paid GBP 100 for one or two months’ work at a cannabis factory. 87. The report further stated that there had been “an increased concern that children are being prosecuted and sentenced for the production and supply of cannabis, but to date, there have been no convictions (for trafficking offences) of criminals who have trafficked or exploited these children.” 88. The testimonies of Vietnamese victims suggested similarities in the route taken to the United Kingdom. Many flew with an agent to Russia and were then transported via lorry to the Ukraine, Poland, the Czech Republic, Germany and France. 89. Within the United Kingdom the most frequently identified destinations were the West Midlands, East Midlands and Greater London. 90. All of the children identified in cannabis factories worked as “gardeners”, tending and watering the cannabis plants. They were often locked in the premises alone and even slept there. Many said that they remained in the premises for the entirety of their exploitation while those who did venture outside stated that they would be accompanied by a member of the criminal network. 91. The report further noted that Vietnamese victims tended to be extremely wary of the authorities and communicated very little about their experiences or their captors. This could have been because they were fearful for family members or distrustful of the authorities, based either on their experiences in Vietnam or on what their captors told them. 92. In respect of the prosecution of Vietnamese trafficking victims, CEOP made the following comments: “Despite the increased awareness raising by CEOP, various children’s services, NGOs and other lobbying groups, children found in cannabis farms are still being treated as offenders rather than victims. The ACPO Child Protection and Abuse Investigation, in conjunction with CEOP, has produced guidance for procedures to be taken when a child is found in such a farm, along with age assessment guidance which puts the protection of the child at the front. Trafficking and age assessments where necessary need to be carried out as a priority, yet CEOP has evidenced that this does not always occur. Despite having ACPO approval, the guidance is not mandatory – it is up to individual police forces to adhere to the recommended procedures.” CEOP: “Police response to recovering a child or young person from a cannabis farm” (2010) 93. In this report, which was also published in December 2010, CEOP indicated that any child identified in a cannabis factory was likely to be a victim of trafficking. However, it noted that in spite of this recognition the trend towards prosecution and not protection of such children had been continuing. Between March 2009 and February 2010 it had identified thirty ‑ seven Vietnamese children and two Chinese children who were trafficked to the United Kingdom for the purposes of cannabis cultivation. At least twenty-six had been charged directly for production, cultivation or supply of cannabis. The cases against thirteen were discontinued but eight of the remaining sixteen children were found guilty of at least one offence. Six were sentenced to between eighteen months and two years in young offenders’ institutions. Relevant international law and practiceUnited Nations Convention against Transnational Organised Crime, 2001 (“the Palermo Protocol”) United Nations Convention against Transnational Organised Crime, 2001 (“the Palermo Protocol”) United Nations Convention against Transnational Organised Crime, 2001 (“the Palermo Protocol”) 94. Article 3 of the Palermo Protocol, ratified by the United Kingdom on 9 February 2006, provides that: “For the purposes of this Protocol: (a) Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons 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 persons’ 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.” United Nations Convention on the Rights of the Child 1989 95. This Convention, which was ratified by the United Kingdom in 1991, provides as relevant: “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 32 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. Article 33 States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties and to prevent the use of children in the illicit production and trafficking of such substances. ... Article 35 States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form. Article 36 States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.” 96. Article 3 of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, which was ratified by the United Kingdom in February 2009, provides that: “1. Each State Party shall ensure that, as a minimum, the following acts and activities are fully covered under its criminal or penal law, whether such offences are committed domestically or transnationally or on an individual or organized basis: (a) In the context of sale of children as defined in article 2: (i) Offering, delivering or accepting, by whatever means, a child for the purpose of: ... c. Engagement of the child in forced labour; ... 3. Each State Party shall make such offences punishable by appropriate penalties that take into account their grave nature. 4. Subject to the provisions of its national law, each State Party shall take measures, where appropriate, to establish the liability of legal persons for offences established in paragraph 1 of the present article. Subject to the legal principles of the State Party, such liability of legal persons may be criminal, civil or administrative.” International Labour Organisation (“ILO”) Forced Labour Convention, 1930 (No. 29) ILO Forced Labour Convention ILO Forced Labour Convention ILO Forced Labour Convention 97. The ILO Convention was ratified by the United Kingdom in 1931. It provides, insofar as relevant: Article 1 “Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress the use of forced or compulsory labour in all its forms within the shortest possible period.” Article 2 “1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. ...” Article 25 “The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced.” Protocol of 2014 to the ILO Forced Labour Convention, 1930 (P029) 98. Article 4 of the Protocol provides that: “1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation. 2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.” The ILO indicators of forced labour 99. The ILO has developed indicators of forced labour which are derived from the theoretical and practical experience of the ILO’s Special Action Programme to Combat Forced Labour. These indicators are based upon the definition of forced labour specified in the ILO Forced Labour Convention and provide a valuable benchmark in the identification of forced labour. They are: Threats or actual physical harm to the worker. Restriction of movement and confinement to the work place or to a limited area. Debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt. Withholding of wages or excessive wage reductions, that violate previously made agreements. Retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status. Threat of denunciation to the authorities, where the worker is in an irregular immigration status. ILO: Worst Forms of Child Labour Convention, 1999 (No. 182) ILO: Worst Forms of Child Labour Convention, 1999 (No. 182) ILO: Worst Forms of Child Labour Convention, 1999 (No. 182) 100. This Convention, which was ratified by the United Kingdom on 22 March 2000, provides as relevant: Article 1 “Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.” Article 2 “For the purposes of this Convention, the term child shall apply to all persons under the age of 18.” Article 3 “For the purposes of this Convention, the term the worst forms of child labour comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. ...” Article 6 “1. Each Member shall design and implement programmes of action to eliminate as a priority the worst forms of child labour. 2. Such programmes of action shall be designed and implemented in consultation with relevant government institutions and employers’ and workers’ organizations, taking into consideration the views of other concerned groups as appropriate.” Article 7 “1. Each Member shall take all necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to this Convention including the provision and application of penal sanctions or, as appropriate, other sanctions. 2. Each Member shall, taking into account the importance of education in eliminating child labour, take effective and time-bound measures to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration; (c) ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take account of the special situation of girls. 3. Each Member shall designate the competent authority responsible for the implementation of the provisions giving effect to this Convention.” ILO: Worst Forms of Child Labour Recommendation, 1999 (No. 190) 101. The provisions of this Recommendation supplement the 1999 Convention and should be applied in conjunction with them. It provides, insofar as relevant: “2. The programmes of action referred to in Article 6 of the Convention should be designed and implemented as a matter of urgency, in consultation with relevant government institutions and employers’ and workers’ organisations, taking into consideration the views of the children directly affected by the worst forms of child labour, their families and, as appropriate, other concerned groups committed to the aims of the Convention and this Recommendation. Such programmes should aim at, inter alia: (a) identifying and denouncing the worst forms of child labour; (b) preventing the engagement of children in or removing them from the worst forms of child labour, protecting them from reprisals and providing for their rehabilitation and social integration through measures which address their educational, physical and psychological needs; (c) giving special attention to: (i) younger children; (ii) the girl child; (iii) the problem of hidden work situations, in which girls are at special risk; (iv) other groups of children with special vulnerabilities or needs; (d) identifying, reaching out to and working with communities where children are at special risk; (e) informing, sensitizing and mobilizing public opinion and concerned groups, including children and their families.... 9. Members should ensure that the competent authorities which have responsibilities for implementing national provisions for the prohibition and elimination of the worst forms of child labour cooperate with each other and coordinate their activities. ... 12. Members should provide that the following worst forms of child labour are criminal offences: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; and (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties, or for activities which involve the unlawful carrying or use of firearms or other weapons.” Council of Europe Convention on Action against Trafficking in Human Beings, 2005 (“the Anti- Trafficking Convention”) 102. In addition to adopting the same definition of trafficking in human beings as the Palermo Protocol (see Article 4), Article 10 of the Anti-Trafficking Convention, which came into force in respect of the United Kingdom on 1 April 2009, provided: “1 Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention. 2 Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. 3 When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age. 4 As soon as an unaccompanied child is identified as a victim, each Party shall: A provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child; b take the necessary steps to establish his/her identity and nationality; c make every effort to locate his/her family when this is in the best interests of the child.” 103. Article 26 contained the following “non-punishment provision”: “Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.” 104. Article 35 provides that: “Each Party shall encourage state authorities and public officials, to co-operate with nongovernmental organisations, other relevant organisations and members of civil society, in establishing strategic partnerships with the aim of achieving the purpose of this Convention.” Organization for Security and Cooperation in Europe (“OSCE”): Ministerial Declaration on Combating All Forms of Human Trafficking (Vilnius, 6 – 7 December 2011) 105. The Declaration provides, insofar as relevant: “8. We promote and support multidisciplinary co-operation, cross-sectoral training and multilateral partnerships. We commend the initiatives taken by the OSCE Special Representative under the auspices of the Alliance against Trafficking in Persons and take note of the 2010 Alliance against Trafficking in Persons Conference on Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude; as well as the 2011 Alliance against Trafficking in Persons Conference on Preventing Trafficking in Human Beings for Labour Exploitation: Decent Work and Social Justice; and Joint OSCE/UNODC Expert Seminar on Leveraging Anti-Money Laundering Regimes to Combat Human Trafficking. 9. We recognize the need to enhance the criminal justice responses to human trafficking, including the prosecution of traffickers and their accomplices, while ensuring that victims are treated in a manner that respects their human rights and that they are provided with access to justice, to legal assistance, and to effective remedies and other services as applicable. We will explore investigative techniques such as financial investigations, improve information sharing relating to organized crime groups, and promote cross-border law-enforcement and judicial collaboration to identify effectively both traffickers and potential victims of human trafficking. 10. We recognize that adequate measures should be taken to ensure that, where appropriate, identified victims of human trafficking are not penalized for their involvement in unlawful activities to the extent that they have been compelled to do so. We urge participating States to implement comprehensive and appropriate measures on assistance to victims of trafficking in persons.” Relevant EU law 106. Directive 2011/36 on preventing and combatting trafficking in human beings of 5 April 2011 (“the Anti-Trafficking Directive”), provides as relevant: “Recital (14) Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities such as the use of false documents, or offences under legislation on prostitution or immigration, that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. This safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in. Article 2 Offences concerning trafficking in human beings “1. Member States shall take the necessary measures to ensure that the following intentional acts are punishable: The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. 2. A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. 3. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. 4. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant where any of the means set forth in paragraph 1 has been used. 5. When the conduct referred to in paragraph 1 involves a child, it shall be a punishable offence of trafficking in human beings even if none of the means set forth in paragraph 1 has been used. 6. For the purpose of this Directive, ‘child’ shall mean any person below 18 years of age.” Article 8 Non-prosecution or non-application of penalties to the victim “Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.” Article 9 Investigation and prosecution “1. Member States shall ensure that investigation into or prosecution of offences referred to in Articles 2 and 3 is not dependent on reporting or accusation by a victim and that criminal proceedings may continue even if the victim has withdrawn his or her statement. 2. Member States shall take the necessary measures to enable, where the nature of the act calls for it, the prosecution of an offence referred to in Articles 2 and 3 for a sufficient period of time after the victim has reached the age of majority. 3. Member States shall take the necessary measures to ensure that persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2 and 3 are trained accordingly. 4. Member States shall take the necessary measures to ensure that effective investigative tools, such as those which are used in organised crime or other serious crime cases are available to persons, units or services responsible for investigating or prosecuting the offences referred to in Articles 2 and 3.” 107. Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 6 April 2013. THE LAW JOINDER OF THE APPLICATIONS 108. 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 4 OF THE CONVENTION 109. The first applicant complained under Article 4 of the Convention that the Crown Prosecution Service (“CPS”) failed adequately to protect him in the aftermath of the trafficking, and that there was a failure properly to implement Article 26 of the Anti-Trafficking Convention. He later revised his complaints to argue that during the criminal proceedings the police and the CPS had failed to conduct an Article 4 compliant investigation into whether he had been trafficked; and that there had been a failure to adopt operational measures to protect him. 110. The second applicant complained that his prosecution violated Article 4 of the Convention because there was a failure by the police, prosecutors and judiciary to identify him as a victim of trafficking prior to his criminal conviction, which prevented the authorities from providing him with the protection he required; that the legal framework in place at the time coupled with the limited availability of judicial intervention deprived him of the protection he was entitled to as a victim of trafficking; and that his prosecution, conviction and incarceration meant that until he was identified as a victim of trafficking after his conviction, he was deprived of the protection to which he was entitled and of the possibility of seeing his traffickers investigated and brought to justice. He later revised his submissions to further argue that the United Kingdom failed to comply with its duty to investigate his traffickers; that it failed in its duty to identify him as a victim of trafficking when he first came to the attention of the authorities; that it failed to apply the appropriate test to identify a child victim of trafficking, and that the Court of Appeal applied a test of compulsion which was prohibited by law; and that it failed to honour the non-criminalisation of victims of trafficking for status-related offences. 111. Article 4 of the Convention reads, insofar as relevant: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour.” The scope of the present complaints 112. It is important at the outset to clarify the scope of the Article 4 complaint before the Court. The applicants’ principal complaint is that by prosecuting them for criminal offences connected to their work in the cannabis factories the State failed in its duty to protect them as victims of trafficking. They do not contend that the State failed to prohibit or punish trafficking, and while they have suggested that the measures taken to investigate and punish their traffickers were themselves inadequate, no such complaint has been ventilated by either applicant before the domestic courts and as such it cannot now be considered by the Court. 113. In support of their claims the applicants have relied heavily on Article 26 of the Anti-Trafficking Convention, which requires Contracting States to provide for the possibility of not imposing penalties on victims of trafficking for their involvement in unlawful activities to the extent that they have been compelled to act as they did (see paragraph 103 above). In particular, they argue that the respondent State failed to comply with that duty and that the CPS and the domestic courts wrongly looked for evidence that they had been compelled to commit the criminal offences, even though both the Anti-Trafficking Convention and the Anti-Trafficking Directive clearly state that children may be recognised as victims of trafficking in the absence of any means of compulsion. For the Court, however, the issue in the present case is not that the State did not make provision for not punishing victims of trafficking, or that, having accepted that the applicants were victims of trafficking, the authorities did not consider that they had been compelled to commit the criminal offences. Rather, the issue is that the CPS, in its original decisions to prosecute and/or in subsequent reviews of those decisions, disagreed with the conclusions of the Competent Authority and found that the applicants were not in fact victims of trafficking, and this conclusion was held by the Court of Appeal to have been amply justified. Therefore, in the Court’s view the aforementioned issues do not, in fact, arise on the facts of the cases at hand. In any case, the Court’s jurisdiction is limited to the European Convention on Human Rights. It has no competence to interpret the provisions of the Anti-Trafficking Convention or to assess the compliance of the respondent State with the standards contained therein (see, mutatis mutandis, National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 106, ECHR 2014). 114. The Court will therefore confine itself to considering whether, on the facts of the cases at hand, the respondent State complied with its positive obligations under Article 4 of the Convention. AdmissibilityVictim status Victim status Victim status (a) The parties’ submissions 115. The Government argued that the applicants could not claim to be “victims” of the alleged violation since the domestic courts supported the finding of the CPS that they were not credible victims of trafficking or, in the case of the second applicant, a credible victim of forced labour. 116. The applicants, on the other hand, pointed out that they had been recognised as credible victims of trafficking by the Competent Authority. Moreover, this finding did not deprive them of their victim status because the State’s positive obligation went beyond a duty to recognise them as victims of trafficking. (b) The Court’s assessment 117. The applicants were both discovered on or near cannabis factories in April/May 2009. The first applicant was discovered during the execution of a drug warrant (see paragraph 5 above), while the second applicant was discovered after police were called to the property (see paragraph 18 above). At the time, there appears to have been clear evidence to indicate that the cultivation of cannabis plants was an activity commonly carried out by child trafficking victims. Both the guidance published by the CPS in December 2007 and its Guidance on Human Trafficking and Smuggling (which was last updated, prior to the applicants’ arrest, on 4 February 2009) highlighted the “cultivation of cannabis plants” as an offence likely to be carried out by child victims of trafficking (see paragraphs 72-73 above). Moreover, the first “scoping report” of the Child Exploitation and Online Protection Command (“CEOP”), which was published in June 2007, identified Vietnamese boys and girls as a specific vulnerable group. It noted that some of these children had been found being exploited in cannabis factories while others were suspected to have been trafficked for the purposes of sexual exploitation (see paragraphs 81-82 above). In a further threat assessment published in April 2009 CEOP indicated that Vietnamese children had the highest probability of being trafficked than any other profile encountered in the study. The Vietnamese children identified by CEOP were primarily involved in the cultivation of cannabis and many were arrested in police raids on cannabis factories. Significantly, CEOP noted in the report that both the Association of Chief Police Officers (“ACPO”) and the CPS had issued guidance on the treatment of children found in such criminal enterprises to ensure that no child was brought before the courts where the crime committed was a direct result of trafficking (see paragraph 83 above). 118. There does not appear to have been any doubt that the first applicant was a minor; on the contrary, the only dispute over his age concerned whether he was fifteen or seventeen years old when he was discovered (see paragraphs 6 and 7 above). In view of the fact that he was a minor discovered during a planned raid on a cannabis factory, the Court considers that from the very outset the police and subsequently the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that he had been trafficked. 119. Upon discovery near the cannabis factory, the second applicant gave his year of birth as 1972 (see paragraph 19 above). However, nine days later, after he had already been charged with being concerned in the production of a controlled drug of Class B, he gave his year of birth as 1992 at a hearing before the Magistrates’ Court. The case was thereafter approached on the basis that he was seventeen years old (see paragraph 23 above). From this point, at the very latest, the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that he had been trafficked. 120. Therefore, in both cases a positive obligation to take operational measures to protect the applicants as potential victims of trafficking arose shortly after they were discovered. Furthermore, in view of the fact that the potential scope of this obligation extends beyond their identification as victims of trafficking (see paragraph 153 below), neither applicant was deprived of his “victim status” within the meaning of Article 34 of the Convention by the decision of the Competent Authority. 121. Therefore, the Court will now consider whether, in all the circumstances of each applicant’s case, the State fulfilled its duty under Article 4 of the Convention to take operational measures to protect him. Other grounds for inadmissibility 122. The Government further contended that the applicants’ complaints are manifestly ill-founded, since they turn entirely on factual issues which have been resolved fairly by the domestic courts. 123. However, the Court is of the opinion that the applicants’ Article 4 complaints raise sufficiently complex issues of fact and law, so that they cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is further satisfied that they are not inadmissible on any other ground. They must therefore be declared admissible. MeritsSubmissions of the parties Submissions of the parties Submissions of the parties (a) The first applicant 124. The first applicant submitted that the CPS stance was in direct conflict with the Competent Authority’s identification of him as a child victim of trafficking for criminal exploitation and the separate and distinct trafficking assessment undertaken by the Local Authority, which also found that he had been trafficked for criminal exploitation. The Competent Authority was the body designated by the Government to meet its obligations to identify victims of trafficking and in the first applicant’s view in light of its findings any assertion that he was not a victim of trafficking was wholly misconceived. Although the CPS supposedly considered the reports from the local authority and the Competent Authority which found that he had been trafficked, it came to a contrary view without any significant evidence capable of displacing the conclusion of the Competent Authority. There were no contemporaneous written records of these reviews and no witness statements were filed by the reviewing lawyers in the appellate proceedings. 125. He further contended that the CPS and police had failed to undertake any Article 4 compliant investigation or review which would have justified its departure from the Competent Authority’s decision. In particular, despite there having been a high expectation that victims of trafficking would be encountered at the cannabis factory, there was a failure to anticipate the need to include child protection experts and social services in order to receive and protect any children recovered; a failure to route the first applicant into a safeguarding-led process which would have enabled him to assist and engage with a criminal investigation into the circumstances of his trafficking; and a failure to analyse the evidence gathered in light of known trafficking methods of control. 126. In the first applicant’s submission, the facts of the case were indicative of a much larger problem, namely the poor identification process adopted by the criminal justice authorities resulting in the continued punishment of victims for crimes committed as a direct consequence of trafficking. In his view, the Government had not adopted specific legislation or measures to implement Article 26 of the Anti-Trafficking Convention so as to give effect to the non-punishment principle and the domestic measures that were in place were insufficient to protect trafficking victims. 127. According to the first applicant, it was incumbent on the responsible bodies within the criminal justice system and the prosecutorial decision-making process to ensure that an effective investigation took place which was capable both of prosecuting the responsible individuals and identifying genuine victims of trafficking; that protective measures were put in place when a suspected or actual victim of trafficking was encountered in order to safeguard his or her welfare; that State agents were appropriately and adequately trained to identify and respond to instances of trafficking without relying on the victim self-identifying; and that a framework of laws, policies and procedures was in place to ensure that the principle of non-prosecution of victims of trafficking was made real and effective rather than theoretical and illusory. (b) The second applicant 128. The second applicant argued that there was an implicit duty under Article 4 of the Convention to identify victims of trafficking, since failure to identify a trafficking victim correctly would probably result in the victim being denied his or her fundamental rights, and the prosecution being denied a necessary witness in the prosecution of the perpetrator. It was the second applicant’s contention that he was deprived of the protection to which he was entitled as a victim of trafficking on account of the failure by the police, prosecutors and judiciary to identify him as such prior to his criminal conviction, despite the fact that at the date of his arrest police and prosecutors were well aware that many Vietnamese children had been trafficked to and within the United Kingdom for the purposes of exploitation in the production of cannabis. In the second applicant’s view, based on the available evidence, including the statements he himself had made following his arrest, the police and prosecutors involved in his case ought to have been aware of circumstances giving rise to a credible suspicion that he had been trafficked. The fact that the second applicant did not himself claim to be a victim of trafficking was irrelevant as victims of trafficking could not be expected to self-identify. 129. As he was a minor, he argued that the obligation to identify was particularly crucial as police, prosecutors and judges could not respect the principle of the best interests of the child if they had not properly identified the child as a victim of trafficking. 130. The second applicant contended that the legal framework in place at the time for protecting potentially trafficked children was inadequate. First of all, the guidance on the use of prosecutorial discretion was not sufficiently robust to ensure the identification of trafficking victims accused of offences, with a view to ceasing prosecution in circumstances where prosecution was inconsistent with the accused’s human rights; and the restrictive review applied by the Court of Appeal when examining challenges to the exercise of that discretion was too limited adequately to protect victims of trafficking. Secondly, domestic law did not criminalise internal trafficking within the United Kingdom, with the result that prosecutors wrongly focussed only on whether he was smuggled or trafficked into the United Kingdom, whilst failing to pay any regard to whether he was a victim of internal trafficking for the purposes of exploitation in the cannabis factory or a victim of forced labour or slavery per se. 131. On the facts of his case, he contended that as there were clear indicators of trafficking on his arrest the police and prosecutor should have referred him into the National Referral Mechanism (“NRM”), and that the trial judge should not have convicted or sentenced him. Their failure to do so had important consequences for him, since his conviction would likely prevent him from accessing lawful employment and otherwise enjoying a safe and secure existence in the respondent State. (c) The Government (i) As concerns the first applicant 132. The Government submitted that the case turned entirely on factual issues which had been resolved fairly by the domestic courts. The CPS had taken the view that the first applicant was not a victim of trafficking and the relevant nexus was not established between the offence and any trafficking. The appeal courts had endorsed that view. The first applicant had not sought to persuade the Crown Court that he was a victim of trafficking or that there was a nexus between trafficking and the offence, but even if he had the Court of Appeal had reached the “unhesitating conclusion” that the argument would have been rejected on the facts. 133. In fact, it was the Government’s contention that the starting point in the case was that the Court of Appeal, on two successive occasions, had carefully considered the first applicant’s case and decided that the CPS had been entitled to reach the view that it had, which was that he was not a victim of trafficking and that the relevant nexus between the offence and his possible status as a child victim of trafficking had not been established. This conclusion was not reached by interpreting the law to his disadvantage but because of the factual circumstances of his case. 134. In the Government’s view, the approach taken by the domestic authorities complied both with the domestic and international legal framework. The first applicant was flagged as a potential victim of trafficking notwithstanding that neither he nor the lawyers representing him in the criminal proceedings asserted that this was the case. He was then given the benefit of a forty-five day reflection period during which no action was taken in his prosecution. The reports in which the Competent Authority concluded that he was a victim of trafficking were considered by the CPS. The decision to prosecute had regard to specific CPS guidance which recognised the vulnerability of victims – and especially child victims – of trafficking and recognised that if a person had been trafficked it might affect both whether there was sufficient evidence to prosecute and whether it was in the public interest to do so. After the initial charging decision, the case was reviewed by a lawyer and counsel following receipt of the trafficking assessment; it was further reviewed by the principal reviewing lawyer assigned to the case after receipt of the reasonable grounds decision; and her decision was subsequently approved by the Chief Crown Prosecutor for Cambridgeshire. The procedures followed in the Crown Court afforded the first applicant and his lawyers ample time and the express opportunity to raise arguments based on his identification as a victim of trafficking, both before and after he entered his plea. Finally, the case was considered twice by the Court of Appeal on the basis that a child should not be prosecuted for an offence where there was a sufficient nexus between trafficking for the purposes of exploitation and the offence, and that it was not necessary to go so far as to show there was compulsion to commit the offence. 135. Insofar as the first applicant sought to frame his argument on the basis of a failure by the domestic authorities to investigate, the Government submitted that the domestic authorities in fact took all the appropriate investigative steps. He was assessed by the Border Agency and recognised by them as a victim of trafficking; on this basis and as a vulnerable unaccompanied child he was given support; operational measures were put in place to arrange accommodation, education, immigration help and to protect him from exploitation in the event that he was released from prison; the police and prosecution liaised with other Government agencies; and the position was kept under review. However, the prosecution were not bound by the determination of the Border Agency. 136. Finally, the Government argued that it would be wrong for the Court to import Article 26 of the Anti-Trafficking Convention wholesale into Article 4 of the Convention, or to interfere with the conclusions of the courts as to which body has ultimate power, in domestic law, to consider the factual position in order to give effect to the rights protected under the Convention. The latter would be particularly so where the courts had given detailed consideration to the issue, aware that in doing so they were departing from a decision of the Competent Authority that a defendant was a victim of trafficking. (ii) As concerns the second applicant 137. The Government submitted, at the outset, that as the second applicant had only complained before the domestic courts that his conviction was unsafe because he should not have been prosecuted as a victim of trafficking, the Court’s consideration of his complaint should be so limited. He did not complain domestically about any failure to conduct an adequate criminal investigation into the circumstances of his alleged trafficking; nor did he contend that either the substantive criminal law or applicable procedure was incompatible with Article 4 of the Convention. 138. As with the first applicant, the Government further argued that the CPS had been entitled to reach an independent view from that of the Border Agency regarding whether or not an individual was a victim of trafficking, and to form the view that in an individual case, taking into account the seriousness of the offending and all of the surrounding circumstances, it was in the public interest to prosecute. Consequently, the decision taken by the Border Agency did not undermine the factual determination of the domestic courts, either at first instance or on appeal, and it followed that the second applicant had not been prosecuted for any offence committed in circumstances protected by Article 4 of the Convention. 139. In this regard, the Government submitted that the CPS, on two successive occasions, and thereafter the Court of Appeal, which had before it the explanation given by NSPCC NCTAIL for the pattern of inconsistencies in the second applicant’s account, had carefully considered his case and had been entitled to take the view that he was not a victim of trafficking and that it was in the public interest to prosecute him. 140. In the Government’s view, while Article 4 did not operate in a vacuum, and regard could be had to the definitions in the Anti-Trafficking Convention and the Palermo Protocol, it did not follow that specific procedural commitments in other international instruments, such as the non-prosecution clause in Article 26 of the Anti-Trafficking Convention, should be understood as forming part of the Convention itself. On the contrary, all that was required under the Convention was that any investigation and prosecution should be approached on a basis which demonstrates respect for the freedoms guaranteed by Article 4. According to the Government, in the second applicant’s case the authorities’ manifestly did so. First of all, the CPS had a discretion whether or not to prosecute him and this decision was based not only on the evidence against him but also on consideration of whether, in light of the surrounding factual circumstances, it was in the public interest to proceed against him. Secondly, it was open to the second applicant to challenge the decision to prosecute him, either by making representations to the CPS, by arguing that the proceedings were an abuse of process, or by seeking to judicially review the decision. Thirdly, upon the determination by the Border Agency being communicated to the CPS, it commissioned an ex post facto review by a Special Casework Lawyer who considered both the evidence that had been available at the time of the prosecution and that which was obtained subsequently and reached a reasoned decision that the initial accounts given by the second applicant were nearest to the truth and that there was no credible suspicion that he was a victim of trafficking. Finally, the Court of Appeal considered his case with care before concluding that the CPS had been entitled to reach the decision that it did. 141. Insofar as the second applicant complained about a failure to investigate, his situation as a potential victim of trafficking was scrutinised by the Competent Authority, his legal representatives, the expert witnesses such as the NSPCC witness and the psychiatrist, the CPS and the domestic courts. Submissions of the third party interveners (a) Group of Experts on Trafficking in Human Beings (“GRETA”) 142. GRETA stressed that in order to protect and assist trafficking victims, it was of the utmost importance to identify them correctly. Nevertheless, despite the guidance provided by the Association of Chief Police Officers (“ACPO”) on how to safeguard children found on cannabis factories, there had been cases in the United Kingdom of victims of trafficking being arrested, prosecuted and convicted in relation to cannabis cultivation. In GRETA’s view this hinged on the fact that they were not identified as possible victims by the relevant professionals with whom they were in contact. In particular, it appeared that duty solicitors often advised children involved in cannabis cultivation to plead guilty as a way of spending less time in detention. In its first report on the United Kingdom, GRETA had called on the State to ensure that the ACPO guidance was fully applied in order to avoid the imposition of penalties on identified victims of trafficking for their involvement in unlawful activities to the extent that they were compelled to do so. 143. It further indicated that the aim of Article 26 of the Anti-Trafficking Convention was to safeguard the human rights of victims and avoid further victimisation. Criminalisation of victims contravened the State’s obligation to provide services and assistance to them, and discouraged them from coming forward and cooperating with the investigation into those responsible for their trafficking. (b) Anti-Slavery International 144. Anti-Slavery International argued that Article 4 of the Convention had to be interpreted in light of the respondent State’s obligations under international treaties such as the Council of Europe Anti-Trafficking Convention, the EU Anti-Trafficking Directive and the Convention on the Rights of the Child. This meant that there were special and enhanced obligations towards trafficked children, whose best interests should be determinative in any decision-making procedure. In this regard, child trafficking victims should be given enhanced protection against punishment, since it was difficult to conceive of a case where it would be in the best interests of a trafficked child to be punished. 145. Moreover, when assessing whether a person is a victim of trafficking, credibility must be viewed through the trafficking perspective; so-called “traditional” adverse credibility factors may not be relevant and may even operate to the opposite effect. For example, it was a widely discredited “myth” that a person is not coerced if he or she did not take an opportunity to escape. There were multiple reasons why a person may not have escaped, as the Home Office Guidance on trafficking itself recognised. (c) Liberty 146. Liberty submitted that the positive obligation under Article 4 should be construed in light of Article 26 of the Anti-Trafficking Convention and the EU Anti-Trafficking Directive to include a positive duty on the State to introduce legislative and other measures that specifically and effectively protect trafficked individuals against unlawful punishment for trafficking-related crimes. These measures should be capable of dealing with the whole criminal law chain, including the police, the prosecution and the courts. In the absence of such measures all State actors should remain under a positive obligation under Article 4 of the Convention to act having regard to the need to prevent trafficked individuals from unlawful punishment for trafficking-related crimes. This was necessary to protect trafficking victims from further harm. 147. In Liberty’s view, there were significant lacunae in the procedural safeguards in the United Kingdom’s criminal justice system. The United Kingdom had not implemented any specific measure directed at the non-punishment of victims of trafficking, and while there was comprehensive guidance for prosecutors, no comparable measures were directed at the police, who were likely to be the first to encounter potential victims of trafficking. Identification at an early stage could, however, ensure that a trafficked individual never enters the criminal justice system. Similarly, there was no explicit duty on the courts to make inquiries into defendants’ potential victim status when they were first brought before them on a criminal charge or thereafter. Moreover, the abuse of power jurisdiction was inadequate as it was heavily dependent on an application being made on the defendant’s behalf and in cases where the defendant had pleaded guilty it was no longer possible for the court to stay the proceedings. While a procedure existed for vacating a guilty plea, it was also dependent on the defendant making the application. The Court’s assessment (a) General principles (i) The scope of Article 4 of the Convention 148. It is now well-established that both national and transnational trafficking in human beings, irrespective of whether or not it is connected with organised crime, falls within the scope of Article 4 of the Convention (see S.M. v. Croatia [GC], no. 60561/14, § 296, 25 June 2020). As such, it is not necessary to identify whether the treatment of which the applicant complains constitutes “slavery”, “servitude” or “forced [or] compulsory labour” (see Rantsev v. Cyprus and Russia, no. 25965/04, § 282, ECHR 2010 (extracts)). 149. Impugned conduct may give rise to an issue under Article 4 of the Convention only if all the constituent elements of the definition of trafficking contained in Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention (often described as “action”, “means”, and “purpose”, although it is not necessary to show “means” in the case of a child) are present (see paragraphs 94 and 102 above). The question whether a particular situation involves all of the constituent elements is a factual question which must be examined in the light of all the relevant circumstances of a case (see S.M. v. Croatia, cited above, § 302). Similarly, the question whether an individual offers himself for work voluntarily is a factual question which must be examined in the light of all the relevant circumstances. However, the Court has made it clear that where an employer abuses his power or takes advantage of the vulnerability of his workers in order to exploit them, they do not offer themselves for work voluntarily. In this regard, the prior consent of the victim is not sufficient to exclude the characterisation of work as forced labour (see Chowdury and Others v. Greece, no. 21884/15, § 96, 30 March 2017). (ii) The State’s positive obligations under Article 4 150. The member States’ positive obligations under Article 4 of the Convention must be construed in light of the Council of Europe’s Anti-Trafficking Convention and be seen as requiring not only prevention but also victim protection and investigation. The Court is guided by the Anti-Trafficking Convention and the manner in which it has been interpreted by GRETA (see Chowdury and Others, cited above, § 104). 151. Article 4 entails a specific positive obligation on member States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour ( Siliadin v. France, no. 73316/01, §§ 89 and 112, ECHR 2005 ‑ VII). In order to comply with this obligation, member States are required to put in place a legislative and administrative framework to prevent and punish trafficking and to protect victims (see Rantsev, cited above, § 285). 152. As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking. In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. When this is the case, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see Rantsev, cited above, § 286, with further references). 153. As for the type of operational measures which might be required by Article 4 of the Convention, the Court has considered it relevant that the Anti-Trafficking Convention calls on the member States to adopt a range of measures to prevent trafficking and to protect the rights of victims. The preventive measures include measures to strengthen coordination at national level between the various anti-trafficking bodies and to discourage the demand for all forms of exploitation of persons. Protection measures include facilitating the identification of victims by qualified persons and assisting victims in their physical, psychological and social recovery (see Chowdury, cited above, § 110). 154. However, bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Rantsev, cited above, § 287). 155. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see Rantsev, cited above, § 288). 156. It follows from the above that the general framework of positive obligations under Article 4 includes: (1) the duty to put in place a legislative and administrative framework to prohibit and punish trafficking; (2) the duty, in certain circumstances, to take operational measures to protect victims, or potential victims, of trafficking; and (3) a procedural obligation to investigate situations of potential trafficking. In general, the first two aspects of the positive obligations can be denoted as substantive, whereas the third aspect designates the States’ (positive) procedural obligation (see S.M. v. Croatia, cited above, § 306). (iii) The prosecution of victims and potential victims of trafficking 157. To date, the Court has not had the opportunity to consider a case concerning the prosecution of a victim, or potential victim, of trafficking. Consequently, this is the first occasion on which it has been called upon to consider if and when such a prosecution may raise an issue under Article 4 of the Convention. 158. It is clear that no general prohibition on the prosecution of victims of trafficking can be construed from the Anti-Trafficking Convention or any other international instrument. Indeed, the “non-punishment” provisions in Article 26 of the Anti-Trafficking Convention, Article 8 of the Anti-Trafficking Directive and Article 4(2) of the 2014 Protocol to the ILO Forced Labour Convention (see, respectively, paragraphs 103, 106 and 98 above) all contain two important qualifications: the victim of trafficking must have been compelled to commit the criminal activity; and, where that is the case, the national authorities should be entitled, but are not obliged, not to prosecute. While compulsion does not appear to be necessary to bring a child within the scope of either Article 26 of the Anti-Trafficking Convention or Article 8 of the Anti-Trafficking Directive, there is nothing in either instrument which could be interpreted as precluding the prosecution of child trafficking victims in any circumstances. 159. Nevertheless, the Court considers that the prosecution of victims, or potential victims, of trafficking may, in certain circumstances, be at odds with the State’s duty to take operational measures to protect them where they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been trafficked. In the Court’s view, the duty to take operational measures under Article 4 of the Convention has two principal aims: to protect the victim of trafficking from further harm; and to facilitate his or her recovery. It is axiomatic that the prosecution of victims of trafficking would be injurious to their physical, psychological and social recovery and could potentially leave them vulnerable to being re-trafficked in future. Not only would they have to go through the ordeal of a criminal prosecution, but a criminal conviction could create an obstacle to their subsequent integration into society. In addition, incarceration may impede their access to the support and services that were envisaged by the Anti-Trafficking Convention. 160. In order for the prosecution of a victim or potential victim of trafficking to demonstrate respect for the freedoms guaranteed by Article 4, his or her early identification is of paramount importance. It follows that, as soon as the authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual suspected of having committed a criminal offence may have been trafficked or exploited, he or she should be assessed promptly by individuals trained and qualified to deal with victims of trafficking. That assessment should be based on the criteria identified in the Palermo Protocol and the Anti-Trafficking Convention (namely that the person was subject to the act of recruitment, transportation, transfer, harbouring or receipt, by means of threat of force or other form of coercion, for the purpose of exploitation) having specific regard to the fact that the threat of force and/or coercion is not required where the individual is a child (see paragraphs 94 and 102 above). 161. Moreover, given that an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, any decision on whether or not to prosecute a potential victim of trafficking should – insofar as possible – only be taken once a trafficking assessment has been made by a qualified person. This is particularly important where children are concerned. The Court has acknowledged that as children are particularly vulnerable, the measures applied by the State to protect them against acts of violence falling within the scope of Articles 3 and 8 should be effective and include both reasonable steps to prevent ill-treatment of which the authorities had, or ought to have had, knowledge, and effective deterrence against such serious breaches of personal integrity (see, for example, Söderman v. Sweden [GC], no. 5786/08, § 81, ECHR 2013; M.P. and Others v. Bulgaria, no. 22457/08, § 108, 15 November 2011; and Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see Söderman, cited above, § 81). Since trafficking threatens the human dignity and fundamental freedoms of its victims (see Rantsev, cited above, § 282), the same is also true of measures to protect against acts falling within the scope of Article 4 of the Convention. 162. Once a trafficking assessment has been made by a qualified person, any subsequent prosecutorial decision would have to take that assessment into account. While the prosecutor might not be bound by the findings made in the course of such a trafficking assessment, the prosecutor would need to have clear reasons which are consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention for disagreeing with it. (b) Application of these principles to the present cases (i) The first applicant 163. The Court has already noted that as the first applicant was discovered by police at a cannabis factory during the execution of a drug warrant, the authorities should have been alert to the possibility that he – and any other young persons discovered there – could be a victim of trafficking. Nevertheless, despite there not being any apparent doubt that he was a minor (see paragraphs 6 and 7 above), neither the police nor the CPS referred him to one of the United Kingdom’s Competent Authorities for an assessment. Instead, he was charged with being concerned in the production of a controlled drug (see paragraph 6 above). 164. Social Services, having conducted an age assessment, appear to have “flagged up” concerns that he might be a victim of trafficking, and some three weeks after his discovery Refugee and Migrant Justice informed his legal representatives of these concerns (see paragraphs 7-8 above). Nevertheless, without any assessment by the Competent Authority having taken place, in August 2009 he pleaded guilty to the offence charged on the advice of his legal representative (see paragraph 10 above). However, sentencing was adjourned to await a trafficking assessment (see paragraph 11 above). 165. At this point, the CPS reviewed the decision to prosecute but concluded that there was no credible evidence that the first applicant had been trafficked (see paragraph 12 above). No further reasons for that decision have been shared with the Court. 166. Following the Competent Authority’s “Conclusive Decision”, in which it found that the first applicant had been trafficked (see paragraph 13 above), the CPS again reviewed the case and once again confirmed the decision to prosecute (see paragraph 14 above). No official reasons were given for this decision but in a letter to a Member of Parliament the CPS explained that the prosecution had not been discontinued because the offences were very serious, there was no defence of duress and there was no clear evidence of trafficking (see paragraph 14 above). In spite of the CPS’s objections, the trial judge gave the first applicant the opportunity to make an application to vacate his guilty plea (see paragraph 15 above). However, again apparently on the advice of Counsel, who considered the suggestion “outrageous”, he decided to maintain his “guilty” plea (see paragraph 16 above). That advice was based at least in part by the fact that the CPS did not intend to withdraw the prosecution (see paragraph 17 above). 167. Although the first applicant was later granted permission to appeal out of time against conviction and sentence (see paragraphs 38-39 above), in February 2012 his appeal was dismissed as the Court of Appeal concluded that the decision to prosecute was amply justified. In those proceedings, the Crown focussed on evidence which in its view suggested that the first applicant was not a victim of trafficking, including the fact that he was found with cash and had a mobile phone, the factory was in a house and not a “makeshift prison”, the first applicant was provided with weekly groceries, and there were some inconsistencies in his account (see paragraph 45 above). 168. However, almost two years later the Competent Authority reconsidered its decision in light of the material in the CPS file but concluded that that information did not change its Conclusive Decision. In particular, it found that the information provided by the CPS did not change the fact that the two key elements of the definition of “trafficking” which were required in the case of a minor (being “action” and “purpose”) were present. In its view, the first applicant had been recruited and harboured in the property (action) for the purpose of exploitation (purpose). Coercion (means) was not required in the case a minor as he could not give informed consent. According to the Competent Authority, the factors relied on by the judge in the criminal trial related merely to peripheral issues and did not go to the core of the elements that made up the definition of trafficking (see paragraphs 53-54 above). 169. The first applicant’s case was subsequently referred back to the Court of Appeal but again his appeal was dismissed. On this occasion the court found that in view of the applicant’s age, the fact that he was not a prisoner and had a significant quantity of cash and a telephone, and the existence of some inconsistencies in his account, it had been open to the Crown to decide that the prosecution should continue as the relevant nexus had not been established between the trafficking and the offence (see paragraphs 55-63 above). 170. However, the Crown did not consider that the relevant nexus had not been established between the trafficking and the criminal offence; rather, it repeatedly found that there was no clear evidence that the first applicant had been trafficked (see paragraphs 12, 14 and 45 above). Moreover, at no stage did it put forward any clear reasons for reaching a different conclusion from that of the Competent Authority, and in so far as any reasons can be gleaned from the information provided to the Member of Parliament (see paragraph 14 above) and to the Court of Appeal (see paragraph 45 above), as the Competent Authority itself pointed out they related to peripheral issues and did not go to the core of the elements necessary to establish “trafficking” (see paragraphs 53-54 above). The Court of Appeal, in twice dismissing the first applicant’s appeal, appears to have relied on the same reasons ( see paragraphs 45 and 55-63 above). 171. At the time of the first applicant’s arrest, Vietnamese minors had already been identified as a specific vulnerable group (see the guidance published by the CPS in December 2007 and on 4 February 2009, set out at paragraphs 72-73 above; CEOP’s first “scoping report” published in June 2007, set out at paragraphs 81-82 above; and CEOP’s threat assessment of April 2009 set out at paragraph 83 above). Moreover, as the CPS indicated in its guidance published in February 2009, trafficked children could be reluctant to disclose the circumstances of their exploitation either for fear of reprisals, out of misplaced loyalty to their traffickers, or because they have been coached. They could also be subject to more psychological coercion or threats, such as threatening to report them to the authorities, threatening their families, or by keeping them socially isolated (see paragraph 73 above). Consequently, the fact that the first applicant had cash and a mobile phone, that the factory was not itself a prison, that he was provided with groceries and that his account was at times inconsistent could not, without more, negate the conclusion that he was trafficked. 172. It would have been open to the CPS – on the basis of clear reasons which were consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention – to have disagreed with the Conclusive Decision. Had it accepted that the first applicant was a child victim of trafficking, it may also have been open to it to prosecute him if it considered – in the language used by the Court of Appeal – that there was no nexus between the offence and the trafficking. However, neither of those two things happened here. Instead, despite the first applicant being discovered in circumstances which themselves gave rise to a credible suspicion that he was a victim of trafficking, his case was not referred to the NRM. Instead, he was charged with a criminal offence to which he pleaded guilty on the advice of his legal representative. Even though he was subsequently recognised by the Competent Authority as a victim of trafficking, the CPS, without providing adequate reasons for its decision, disagreed with that assessment and the Court of Appeal, relying on the same inadequate reasons, twice found that the decision to prosecute him was justified. 173. In light of the foregoing, the Court considers that the State cannot be said to have fulfilled its duty under Article 4 of the Convention to take operational measures to protect the first applicant, either initially, as a potential victim of trafficking, and subsequently, as a person recognised by the Competent Authority to be the victim of trafficking. 174. Accordingly, it finds that there has been a violation of Article 4 of the Convention. (ii) The second applicant 175. On 21 April 2009 the second applicant was discovered by police close to a cannabis factory (see paragraph 18 above). He was treated as an adult because he initially gave his year of birth as 1972, which would have made him thirty-seven years old (see paragraph 19 above). Given that he was in fact seventeen years old, it is not clear how credible his claim to be thirty-seven actually was. In any event, even if the police had no reason to doubt that he was an adult, the account that he provided in his first police interview should have given rise to some cause for concern. In particular, he claimed that the door was locked from the outside and he believed the factory was guarded; that he was not paid for his work; and that he might be killed if he stopped working (see paragraphs 20 and 21 above). Nevertheless, no referral was made to a Competent Authority. Instead, he was charged with being concerned in the production of a Class B drug (see paragraph 22 above). 176. On 30 April 2009, at a hearing before the Magistrates’ Court, he gave his year of birth as 1992. From this point on it was accepted that he was seventeen years old (see paragraph 23 above). In view of what was known about the situation of Vietnamese youths working as gardeners in cannabis factories (see paragraphs 72-73 and 81-83 above), the Court considers that from this point, at the very latest, the CPS should have been aware of the existence of circumstances giving rise to a credible suspicion that he had been trafficked (see paragraph 119 above). However, although the CPS conducted a file review on 1 June 2009, in which it concluded that the second applicant had been smuggled into the United Kingdom as his parents had funded his journey (see paragraph 24 above), he was only referred to the National Society for the Prevention of Cruelty to Children National Child Trafficking Advice and Information Line (“NSPCC NCTAIL”) in April 2010 (see paragraph 30 above); and he was only assessed by the Competent Authority in November that same year (see paragraph 33 above). 177. In the meantime the second applicant pleaded guilty to the offence with which he had been charged (see paragraph 27 above). Although he also informed counsel that he was locked in the factory and threatened that if he left he would be killed, counsel did not believe that a defence of duress would be successful as he had the opportunity to run away and did not take it – a factor which the Competent Authority subsequently considered could be explained by the fact that he was in a position of dependency and vulnerability (see paragraphs 27 and 33 above). 178. On 28 June 2011 a Special Casework Lawyer from the CPS reviewed the second applicant’s case in light of the conclusions of NSPCC NCTAIL and the Competent Authority. Having particular regard to certain inconsistencies in his account, the fact that he could have escaped, the fact that he was found with some money and the fact that he had not been physically injured, she concluded that he was not a victim of trafficking (see paragraph 36 above). However, nearly all of these factors were addressed by the Competent Authority when it accepted, on the balance of probabilities, that the second applicant was a victim of trafficking (see paragraph 33 above) and the CPS lawyer does not appear to have explained why she believed that they justified reaching the opposite conclusion. Moreover, on 7 November 2011 NSPCC NCTAIL produced a supplemental report in which the social worker had regard to the documentation produced in the criminal proceedings. If anything, she stated that her conclusion that the second applicant was a victim of trafficking at the time of his arrest had been “strengthened”. In doing so, she pointed out that accounts given by potential child victims of trafficking to different professionals in different contexts were rarely consistent (see paragraph 37 above). 179. In dismissing his appeal, the Court of Appeal held that criticism of the process which culminated in the second applicant being sentenced ignored the fact that he himself had provided accounts suggesting that he had been “smuggled” into the United Kingdom. It therefore considered that there was no evidence before the Crown Court, the CPS or the defence which would have suggested that he had been trafficked into the United Kingdom (see paragraphs 47-48 above). 180. With all due respect to the Court of Appeal, this finding is difficult to reconcile with the CPS’s own guidance published in February 2009, which indicated that trafficked children might be reluctant to disclose the circumstances of their exploitation and as a consequence prosecutors should themselves be alert to the possibility (see paragraph 73 above). Similar guidance was set out by the Court of Appeal itself in the case of R. v. O., in which it clearly stated that prosecutors must be aware of the protocols and defence lawyers should make enquiries if there is credible material showing that their client may have been a victim of trafficking (see paragraphs 77-78 above). It is also difficult to reconcile with the finding by both NSPCC NCTAIL and the Competent Authority that the second applicant had in fact been trafficked into the United Kingdom (see paragraphs 32, 33 and 37 above). 181. In this regard, the Court has already held that from the point when the second applicant was discovered, certain aspects of his account should have raised concerns that he might have been a victim of trafficking (see paragraph 175 above). These concerns should only have intensified when it became apparent that he was a minor (see paragraph 176 above). From this point on, the State had a positive obligation to take operational measures to protect him. Instead, the criminal proceedings were allowed to proceed, with the second applicant entering a guilty plea on the advice of his legal representative. Even though he was subsequently recognised both by NSPCC NCTAIL and the Competent Authority as a victim of trafficking, the CPS disagreed with that assessment without providing clear reasons for its decision which went to the core of the elements necessary to establish “trafficking”, and the Court of Appeal, relying on the same reasons, found that the decision to prosecute was not an abuse of process. 182. In light of the foregoing, the Court considers that the State cannot be said to have fulfilled its duty under Article 4 of the Convention to take operational measures to protect the second applicant, either initially, as a potential victim of trafficking, and subsequently, as a person recognised by the Competent Authority to be a victim of trafficking. 183. Accordingly, it finds that there has been a violation of Article 4 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 184. The applicants complained that as a result of the State’s breach of its positive obligation under Article 4 they were denied a fair trial within the meaning of Article 6 of the Convention. 185. Article 6 § 1 of the Convention provides, insofar as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility 186. The Court notes that the applicants’ Article 6 complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The first applicant 187. The first applicant argued that his guilty plea did not in and of itself extinguish his fair trial rights. In his view, it was not tenable to suggest that a trafficking victim’s fair trial rights could be waived simply by a guilty plea. This appears to have been recognised by the CPS, which in updated guidance cautioned against early guilty pleas in potential trafficking cases. 188. On the facts of the case the first applicant argued that he had been deprived of a fair trial because the police had failed to undertake an investigation capable of providing him with exculpatory evidence, even though there was a credible suspicion that he had been trafficked; and the CPS’s assessment of the case was fundamentally flawed because it conducted its first review before the Competent Authority had concluded its assessment, it subsequently attached too little weight to that assessment and throughout the process it ignored the indicators of trafficking which were present. In light of these failings, it was no answer to say that the first applicant should have applied to vacate his plea or initiate an abuse of process. (b) The second applicant 189. The second applicant argued that he had pleaded guilty on the provision of bad legal advice from his original lawyers. He was never advised that he might be a victim of trafficking and no steps were taken by his own lawyers or by the CPS to investigate his case, even in the face of the findings of NSPCC NCTAIL and the Competent Authority. As he was a child, his case should have been referred automatically into the NRM as a child-safeguarding response. However, there was no process in place for such a referral to be made and as a consequence he could not be said to have waived his right to a fair trial. Although there was a wealth of objective evidence that pointed to the likelihood that he might be a victim of trafficking there was no recognition of this by any State actor prior to the date of his criminal conviction. (c) The Government 190. The Government argued that the first applicant had waived his right to argue that he should not have been prosecuted by virtue of the combination of (i) his failure to raise any argument that he should not have been prosecuted, by way of abuse of process or judicial review, notwithstanding that he had been advised of the possibility; (ii) his plea of guilty; and (iii) his subsequent decision not to take advantage of the opportunity, expressly offered by the domestic court, to argue that he should be permitted to withdraw his guilty plea in order to raise any matter arising from his identification by the Competent Authority as a victim of trafficking. 191. In addition, the Government argued that the process as a whole had been fair. The first applicant had the benefit of two separate appeals, each of which was heard before the Lord Chief Justice of the day. His arguments were examined thoroughly, including arguments about abuse of process and the adequacy of his legal representation. However, the Court of Appeal held that even if he had raised abuse of process in the court below it would not have been successful. His hearing was therefore entirely fair under Article 6 § 1 of the Convention. 192. The Government also argued that the second applicant, by virtue of his guilty plea, had waived his right to a determination of guilt or innocence by the domestic courts. 193. In any event, the Government submitted that he had the benefit of free and independent legal advice together with an interpreter; and he had the benefit of a significant period of time, between his arrest on 21 April 2009 and his plea in early July 2009, in which to reflect on the position. However, at this stage the detailed account which he gave to his lawyers was factually incompatible with trafficking and forced labour. Nonetheless, in an appeal before the Lord Chief Justice he was allowed to argue that his plea had not been fairly entered and to introduce a substantial quantity of material based on a new factual account. The Court’s assessment 194. In determining whether there has been a violation of Article 6 § 1 of the Convention, the Court must answer the following questions: first of all, did the failure to assess whether the applicants were the victims of trafficking before they were charged and convicted of drugs-related offences raise any issue under Article 6 § 1 of the Convention; secondly, did the applicants waive their rights under that Article by pleading guilty; and finally, were the proceedings as a whole fair? (a) Did the failure to investigate whether the applicants were the victims of trafficking before they were charged and convicted of drugs-related offences raise any issue under Article 6? 195. The Court has repeatedly underlined the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008, Dvorski v. Croatia [GC], no. 25703/11, § 108, ECHR 2015). It has also recognised that an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only properly be compensated for by the assistance of a lawyer (see Salduz, cited above, § 54). The fairness of proceedings requires that an accused should 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 for an accused in distress and checking of the conditions of detention (see Dvorski, cited above, § 108). 196. Although victims of trafficking are not immune from prosecution, an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so (see paragraph 161 above). Evidence concerning an accused’s status as a victim of trafficking is therefore a “fundamental aspect” of the defence which he or she should be able to secure without restriction. 197. In the present cases, it is true that the applicants’ representatives could themselves have referred the applicants to the NRM. Both applicants were legally represented from the outset, a factor generally considered by the Court to be an important safeguard against any unfairness in the proceedings. The second applicant was publicly funded (see paragraph 25 above) and although there is no evidence to this effect before the Court, it is likely that – at least initially – the first applicant also had the benefit of legal aid. Even so, in both cases the applicants’ representatives appear to have dismissed out of hand the possibility that they were victims of trafficking. In the case of the first applicant, the possibility that he was a victim of trafficking was raised both by Social Services and Refugee and Migrant Justice (see paragraph 8 above); however, even after he received the Competent Authority’s Conclusive Decision his lawyer considered the suggestion that he change his plea to be “outrageous” since in his view the first applicant had not been trafficked (see paragraph 16 above). While the second applicant’s lawyer appears also to have been alerted to the possibility that he was trafficked (see paragraph 25 above), this does not seem to have resulted in any further action by the lawyer. 198. Nevertheless, while criminal defence lawyers should undoubtedly be alert to indicators of trafficking, their failure to recognise or act upon such indicators cannot by itself absolve the State and its agents of their responsibility to do so. As already noted, at least one of the applicants was publicly funded and the Court has held, albeit in the context of Article 6 § 3 (c) of the Convention, that the competent national authorities are required to intervene in the event of a manifest failure by legal aid counsel to provide effective representation (see Daud v. Portugal, 21 April 1998, § 38, Reports of Judgments and Decisions 1998 ‑ II). Although neither applicant has invoked that Article, it is clear from this line of jurisprudence that the State cannot hide behind the shortcomings of legal aid counsel where those shortcomings amount to a “manifest failure to provide effective representation”. 199. In the cases at hand it is not necessary to determine whether the aforementioned shortcomings of the applicants’ legal representatives reached this high threshold. In the context of Article 4 of the Convention, it is the State which is under a positive obligation both to protect victims of trafficking and to investigate situations of potential trafficking and that positive obligation is triggered by the existence of circumstances giving rise to a credible suspicion that an individual has been trafficked and not by a complaint made by or on behalf of the potential victim (see paragraphs 152 and 155 above). The State cannot, therefore, rely on any failings by a legal representative or indeed by the failure of a defendant – especially a minor defendant – to tell the police or his legal representative that he was a victim of trafficking. As the 2009 CPS guidance itself states, child victims of trafficking are a particularly vulnerable group who may not be aware that they have been trafficked, or who may be too afraid to disclose this information to the authorities (see paragraph 73 above). Consequently, they cannot be required to self-identify or be penalised for failing to do so. 200. The Court has already found that the authorities’ failure to conduct a timely assessment of whether the applicants had in fact been trafficked amounted to a breach of their positive obligations under Article 4 of the Convention (see paragraphs 174 and 183 above). In the context of Article 6 of the Convention it considers that the lack of such an assessment prevented them from securing evidence which may have constituted a fundamental aspect of their defence. (b) Did the applicants waive their rights under Article 6 of the Convention? 201. It is true that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner; it must not run counter to any important public interest; and it must be attended by minimum safeguards commensurate with its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A; Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006 ‑ XII; Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II; and Dvorski, cited above, § 100). In addition, it must not be tainted by constraint (see Deweer v. Belgium, 27 February 1980, §§ 52-54, Series A no. 35). In the context of plea bargains, the Court has held that by not contesting a criminal charge, an applicant may waive his right to have the criminal case against him examined on the merits. However, a decision to accept a plea bargain should be accompanied by the following conditions: (a) the bargain must be accepted in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner; and (b) the content of the bargain and the fairness of the manner in which it had been reached between the parties must be subject to sufficient judicial review ( Natsvlishvili and Togonidze v. Georgia, no. 9043/05, § 92, ECHR 2014 (extracts)). 202. In the cases at hand, the applicants’ guilty pleas were undoubtedly “unequivocal” and as they were legally represented they were almost certainly made aware that there would be no examination of the merits of their cases if they pleaded guilty. However, in the absence of any assessment of whether they were trafficked and, if so, whether that fact could have any impact on their criminal liability, those pleas were not made “in full awareness of the facts”. Furthermore, given that trafficking threatens the human dignity and fundamental freedoms of its victims and is not compatible with a democratic society and the values expounded in the Convention (see Rantsev, cited above, § 282), in the absence of any such assessment any waiver of rights by the applicants would have run counter to the important public interest in combatting trafficking and protecting its victims. 203. It is true that following receipt of the Conclusive Decision the trial judge gave the first applicant an opportunity to apply to vacate his plea (see paragraph 15 above), and that the first applicant decided not to do so. This decision was taken on the advice of his legal representative, who told him that even if such an application was successful the CPS would not withdraw the prosecution. He was also told that any judicial review of the decision to prosecute would have little prospect of success (see paragraph 17 above). In the Court’s view, the first applicant, being a minor who was arrested and prosecuted within a foreign criminal justice system, who had already pleaded guilty to a criminal offence in circumstances which did not amount to a waiver of his Article 6 rights, cannot be said to have subsequently waived those rights by deciding not to pursue applications against the robust advice of his legal representative. 204. The Court does not, therefore, consider that the applicants waived their rights under Article 6 § 1 of the Convention. (c) Whether the fairness of the proceedings as a whole was prejudiced 205. As the Court has found on numerous occasions, compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see, for example, Beuze v. Belgium [GC], no. 71409/10, § 121, 9 November 2018). 206. In this regard, the Court observes that even though the applicants had pleaded guilty to the offences charged, the CPS nevertheless reviewed its decision to prosecute them after the Competent Authority recognised them as victims of trafficking. In addition, they were both subsequently granted permission to appeal out of time and the first applicant’s case was referred back to the Court of Appeal by the CCRC for a further appeal. 207. However, as the Court has already noted, in respect of both applicants the reasons given by the CPS for disagreeing with the Competent Authority were wholly inadequate. Insofar as any reasons were given, they were not consistent with the definition of trafficking contained in the Palermo Protocol and the Anti-Trafficking Convention (see paragraphs 170, 172 and 177-181 above). 208. Moreover, on both occasions the Court of Appeal was primarily concerned with whether there had been a misapplication of prosecutorial discretion sufficient for the decision to prosecute to have been an abuse of process, and in dismissing the applicants’ appeals it relied on the same reasons which were advanced by the CPS, and which the Court has already found to be inconsistent with the definition of trafficking in international law (see paragraphs 170, 172 and 177-181 above). Although the applicants invoked Article 4 of the Convention it did not consider their cases through the prism of the State’s positive obligations under that Article. On the contrary, it restricted itself to a relatively narrow review; in dismissing the appeals by both applicants the Court of Appeal made it clear that a defendant is provided with one opportunity to give his instructions to his legal advisors and that it would only be “in the most exceptional cases” that the court would consider it appropriate to allow the defendant to advance fresh instructions about the facts for the purposes of an appeal against conviction (see paragraph 50 above). In the Court’s view, such an approach would in effect penalise victims of trafficking for not initially identifying themselves as such and allow the authorities to rely on their own failure to fulfil their duty under Article 4 of the Convention to take operational measures to protect them. Consequently, the Court does not consider that the appeal proceedings cured the defects in the proceedings which led to the applicants’ charging and eventual conviction. 209. The foregoing considerations are sufficient to enable the Court to conclude that in respect of both applicants the proceedings as a whole could not be considered “fair”. 210. There has accordingly been a violation of Article 6 § 1 of the Convention. alleged violation of article 14 READ TOGETHER WITH ARTICLE 6 OF THE CONVENTION 211. The second applicant also complained that there had been a breach of Article 14 read together with Article 6 of the Convention. In this regard, he contended that as a victim of trafficking exploited for the purposes of producing illegal drugs he was treated differently from victims of trafficking exploited for other criminal purposes. 212. However, this complaint was not raised either expressly or in substance before the domestic courts and as such, domestic remedies cannot be said to have been exhausted. 213. This complaint must therefore be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 214. 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 215. The first applicant claimed compensation for non-pecuniary damage in the form of loss of liberty, mental anguish and distress. 216. The second applicant claimed the sum of 75,000 euros (EUR) for non-pecuniary damage, in particular the distress and practical issues connected with having a past criminal conviction and the prolonged uncertainty with regard to his status as a child victim of trafficking. 217. In respect of both applicants the Government argued that the finding of a violation of Articles 4 and/or 6 of the Convention should constitute sufficient just satisfaction in the case. 218. The Court notes at the outset that the first applicant has not quantified his claim for non-pecuniary damages. Although Article 41 does not itself impose on applicants or their representatives before the Court any procedural requirements, on the basis of the Rules of Court and The Practice Direction on Just Satisfaction Claims (issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 28 March 2007) it is the Court’s prevailing practice that applicants should articulate a “claim” for just satisfaction during the communication stage of the proceedings. Nevertheless, the Court has applied a degree of flexibility in respect of non-pecuniary damage and has in practice agreed to examine claims for which applicants did not quantify the amount, “leaving it to the Court’s discretion” (see Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017 and cases cited therein). It therefore considers that it can make an award in respect of non-pecuniary damage even though the first applicant has not quantified his claim. 219. In respect of both applicants the Court refers to its finding that there has been a violation of Articles 4 and 6 of the Convention on account of the failure of the respondent State to fulfil its positive obligations under Article 4 to take operational measures to protect the victims of trafficking. The Court has no doubt that the applicants suffered distress on account of the criminal proceedings and have faced certain obstacles on account of their criminal records. However, it must also bear in mind that the aforementioned violations were essentially procedural in nature and as such the Court has not had to consider the merits of the decisions to prosecute the applicants. The Court therefore considers it appropriate to grant to each of the applicants the sum of EUR 25,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 220. The first applicant claimed 39,660.62 British pounds (GBP) for the costs and expenses incurred before the Court, a figure which included the fees of four counsel and one solicitor. 221. The second applicant claimed GBP 19,810.00 for the costs and expenses incurred before the Court. 222. The Government argued that the number of hours claimed by the first applicant’s solicitor were excessive, as were the professional costs of counsel. 223. 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, for the proceedings before it, EUR 20,000 to each applicant, plus any tax that may be chargeable to them. Default interest 224. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 (prohibition of forced labour) of the Convention, finding that the domestic authorities had failed to take adequate operational measures to protect the applicants, both of whom had been potential victims of trafficking. It noted in particular that despite the applicants being discovered in circumstances which indicated that they had been victims of trafficking, they had been charged with a criminal offence to which they pleaded guilty on the advice of their legal representatives, without their case first being assessed by the Competent Authority. Even though they were subsequently recognised by the Competent Authority as victims of trafficking, the prosecution service, without providing adequate reasons for its decision, disagreed with that assessment and the Court of Appeal, relying on the same inadequate reasons, found that the decision to prosecute was justified. The Court considered this to be contrary to the State’s duty under Article 4 of the Convention to take operational measures to protect the applicants, either initially as a potential victims of trafficking or subsequently as persons recognised by the Competent Authority to be the victims of trafficking. In the present case, the Court also considered that the proceedings as a whole had not been fair, in violation of Article 6 § 1 (right to a fair trial) of the Convention. |
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